Bar: Attorney general must reconsider MACC’s investigation papers

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The attorney general’s directive to the MACC to close its investigation papers, particularly where the investigation is incomplete, is beyond his authority, says Steven Thiru.

The Malaysian Bar is gravely concerned over the attorney general’s decision of 26 January 2016 on the three investigation papers submitted to him by the Malaysian Anti-Corruption Commission (MACC) concerning the transfer of US$681m (the purported donation) and the transfer of funds from SRC International Sdn Bhd (SRC), both into the personal bank accounts of the prime minister.

The attorney general has declared that he is satisfied that no criminal offence has been committed by the prime inister and instructed the MACC to close the three investigation papers.

It was subsequently reported that the MACC decided to refer the attorney general’s decision to two of its statutory oversight panels: the operations review panel and the special panel.[i] Both these panels reviewed the decision, and on 28 January 2016 advised the MACC to engage with the attorney general regarding his decision.[ii]

The advice of the MACC’s oversight panels is not surprising. The attorney general’s decision to exonerate the prime minister of any criminal offence appears to be unsustainable in law. The decision seems premature, lacking in facts, bereft of particulars, and founded on questionable or inadequate reasons.

In respect of the purported donation, it has been reported that the MACC’s probe is ongoing. The attorney general has been asked by the MACC to request documents and statements from individuals from several overseas financial institutions[iii] under the Mutual Assistance in Criminal Matters Act 2002.[iv]

This is necessary to ascertain the veracity of the evidence that the MACC has already collated in Malaysia. Without this elementary scrutiny of the obtained evidence, the investigation would be incomplete.

However, the attorney general has refused to make the request on the basis that he has discovered no criminal offence in relation to the purported donation.[v]

This explanation prompts many basic questions that persist and need to be answered, such as:

  • Who specifically made the donation of US$681m to the prime minister between 22 March 2013 and 10 April 2013?
  • What was the purpose of this donation?
  • If the purpose has not been identified, is it proper to conclude that no criminal offence has been committed?
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The attorney general has also said that $620m of the purported donation was returned by the prime minister to the alleged donor in August 2013. This disclosure, made more than six months after the revelation of the transfer of funds into the prime minister’s personal bank accounts, raises more troubling questions:

  • Was Bank Negara Malaysia and/or the MACC notified of the repatriation of the $620m?
  • What happened to the balance of $61m that was not returned to the donor?
  • If the manner in which the $61m was utilised by the prime minister has not been ascertained, how would the presumption of corrupt practice in Section 50 of the MACC Act 2009 be rebutted?

In relation to the transfer of funds from SRC, the attorney general has omitted to specify the exact sum of money that was transferred into the prime minister’s personal bank accounts.

It was previously reported that RM42m from SRC had been deposited into the prime minister’s personal bank accounts.[vi] It has now been reported that an additional RM27m from SRC was deposited into the personal bank accounts of the prime minister on 8 July 2014.[vii] This would appear to bring the total deposit from SRC to RM69m. The attorney general has regrettably not addressed this apparent and glaring discrepancy.

The attorney general has also not disclosed who gave the approval for the transfer of money into the prime minister’s personal bank accounts, the purpose of the transfer, and how the account numbers of the prime minister’s personal bank accounts were obtained.

The attorney general has stated that there was no evidence that the prime minister had any knowledge, or had been informed, of the transfer of monies from SRC into his personal bank accounts. However, an account holder is deemed to know and cannot claim to be unaware of transactions concerning his personal bank accounts.

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Knowledge can be implied or inferred in certain circumstances. In this regard, it has been reported that RM3.2m was paid from one of these bank accounts to two credit card accounts.[viii]

The attorney general further stated that the evidence shows that the prime minister believed that “all payments which were made by him were made from the donation received from the Saudi royal family which was earlier transferred to his personal accounts”.[ix]

This finding appears implausible, as RM27m from SRC was reportedly transferred into the prime minister’s personal bank accounts on 8 July 2014,[x] which was after the balance of $620m of the purported donation had been returned in August 2013.

In the circumstances, the attorney general’s decision that no criminal offences have been committed in respect of the MACC’s investigation papers is hasty and difficult to justify.

Indeed, there have been reports that the attorney general rejected the MACC’s recommendations[xi] in the investigation papers, that three charges pursuant to Section 403 of the Penal Code (dishonest misappropriation of property) be levelled against the prime minister.[xii]

Further, the attorney general’s directive to the MACC to close its investigation papers, particularly where the investigation is incomplete, is beyond the attorney general’s authority. It could be perceived as an act of interference in the investigation. The attorney general should render all assistance to the MACC to facilitate ongoing investigations or fresh investigations, as and when additional or new evidence is discovered.

The Malaysian Bar also disagrees with statements, attributed to certain quarters, that the discretion of the attorney general under Article 145(3) of the Federal Constitution to decline to exercise his prosecutorial powers is “absolute” and cannot be questioned in court.

The notion of absolute discretionary powers is contrary to the rule of law. All legal powers — even a constitutional power — have legal limits.[xiii] Thus, the modern and prevailing view is that the attorney general’s decision not to prosecute is open to challenge in a judicial review action, if the exercise of the prosecutorial discretion is tainted by bad faith, dishonesty or extraneous purposes.[xiv]

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The attorney general’s prosecutorial powers are therefore not unfettered.

The Malaysian Bar therefore urges the attorney general to reconsider his decision on the transfer of funds into the personal bank accounts of the prime minister, and to exercise the prosecutorial powers in Article 145(3) Federal Constitution appropriately.

Steven Thiru is president of the Malaysian Bar

Notes:

[i] See Part III of the Malaysian Anti-Corruption Commission Act 2009.
[ii] Press statement by Operation Review Panel and Special Panel of the Malaysian Anti-Corruption Commission entitled “MACC To Engage AG For Recent Decision”, 28 January 2016 (http://www.sprm.gov.my/index.php/arkib-kenyataan-media/1480-macc-to-engage-ag-for-recent-decision).
[iii] “Apandi can’t close investigations, should help MACC, says former A-G”, The Malaysian Insider, 28 January 2016 (http://www.theedgemarkets.com/my/article/apandi-can%E2%80%99t-close-investigations-should-help-macc-says-former-g).
[iv] See Part II, Mutual Assistance in Criminal Matters Act 2002.
[v] “No criminal offence over RM 2.3 billion in Najib’s accounts, case closed, says A-G”, The Malaysian Insider, 26 January 2016 (http://www.themalaysianinsider.com/malaysia/article/a-g-holds-press-conference-to-discuss-src-rm2.6-billion-probes).
[vi] “SENSATIONAL FINDINGS! – Prime Minister Najib Razak’s Personal Accounts Linked To 1MDB Money Trail MALAYSIA EXCLUSIVE!”, Sarawak Report, 2 July 2015 (http://www.sarawakreport.org/2015/07/sensational-findings-prime-minister-najib-razaks-personal-accounts-linked-to-1mdb-money-trail-malaysia-exclusive/).
[vii] “Pua: Najib should explain money transfers made my [sic] SRC International”, The Sun Daily, 28 January 2016 (http://www.thesundaily.my/news/1680052).
[viii] “Dark cloud over entire probe: Pua”, The Sun, 29 January 2015.
[ix] “Statement from A-G on Najib, RM2.6 billion and SRC International”, The Malaysian Insider, 28 January 2016 (http://www.themalaysianinsider.com/malaysia/article/investigation-papers-returned-by-macc-on-src-international-and-rm2.6-billio).
[x] “Did Tabung Haji bail out firms linked to SRC money trail, asks DAP”, The Malaysian Insider, 2 February 2016 (http://www.themalaysianinsider.com/malaysia/article/did-tabung-haji-bail-out-firms-linked-to-src-money-trail-asks-dap).
[xi] “Report: AG ignored MACC advice to charge Najib”, Malaysiakini, 28 January 2016 (https://www.malaysiakini.com/news/328539).
[xii] “Sources: MACC proposed three charges under Penal Code”, Malaysiakini, 27 January 2016 (https://www.malaysiakini.com/news/328463).
[xiii] Chng Suan Tze v Minister of Home Affairs [1998] SLR 132 at 156.
[xiv] Rosli bin Dahlan v Tan Sri Abdul Gani bin Patail & Ors [2014] MLJU 559; Law Society of Singapore v Tan Guan Huat Neo Phylis [2008] 2 SLR 239; R v Director of Public Prosecutions, ex parte Kebilene [1999] 3 WLR 972.

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