The Malaysian Bar has passed a motion calling on Attorney General Apandi Ali to resign and for the solicitor general to take over the public prosecutorial role in the cases involving 1MDB and the RM2.6bn ‘donation’.
Motion on the attorney general, public prosecutor and improvement of public perspective of administration of justice in Malaysia
(1) It is important that the attorney general, who is also the public prosecutor, is both independent and perceived to be independent, especially when it comes to prosecuting persons and entities that have broken Malaysian laws, irrespective of whether they are currently ministers, holding senior position in public service and/or legal entities owned by the government.
(2) It is the attorney general, as public prosecutor, who is vested with the power to prosecute persons and/or entities that have acted against the laws of Malaysia, including criminal laws.
(3) Of late, there have been several allegations of corruption and/or other breaches of the law made against Najib Razak, who is also the current Prime Minister of Malaysia and Minister of Finance, in connection with large amounts of money, amounting to more than RM2bn that was found in the personal bank account of Najib Razak.
(4) There have been allegations of wrongdoings with regard to Malaysian government-owned company, 1MDB, SRC International and/or other related companies, where Najib Razak also sits as the chairman of the board of advisors of the said 1MDB.
(5) Investigations have been commenced by the relevant authorities including the Malaysian Anti-Corruption Commission (MACC).
(6) In the midst of investigations about these alleged offences, Abdul Gani Patail’s services as attorney general was suddenly terminated as of about 27 July 2015, and Mohamed Apandi Ali was appointed new attorney general effective 27 July 2015.
(7) Our Federal Constitution states that it is ‘on the advice of the prime minister’ that the Yang Di-Pertuan Agung appoints the attorney general. In practice, this means that the prime minister decides on the appointment and removal of the attorney general.
(8) Now, given the fact that this happens when there was an ongoing investigation of Najib Razak personally, and also matters that concern the Minister of Finance, who is also Najib Razak, there are concerns about the appointment of the new attorney general.
(9) In early December 2015, Prime Minister Najib Razak was scheduled to provide an explanation to Parliament about all these allegations. However, he did not do so, apparently on the advice of the attorney general.
(10) The Malay Mail report dated 3 December 2015 stated, amongst others, that “Prime Minister Datuk Seri Najib Razak was only acting on the Attorney-General’s (AG) advice in declining explaining personally in Parliament the RM2.6 billion donation he received, Datuk Seri Azalina Othman [Minister in the Prime Minister’s Department] said today”…. “the federal government made a collective decision to issue a ministerial statement in their response to questions after AG Tan Sri Apandi Ali said Najib may be risking ‘subjudice’ if he attempted to answer in person with investigations into the surrounding controversy still ongoing. ‘The AG is the government’s lawyer. We are guided by his advice.’”
(11) The attorney general, whilst also acting as public prosecutor involved in the ongoing investigation which may lead to the prosecution of Najib Razak, government of Malaysia, government-owned companies and/or GLCs, should not also be providing legal advice to those being investigated.
(12) The results of the investigations of the Malaysian Anti-Corruption Commission (MACC) were submitted to the public prosecutor to consider commencement of trial, but as reported on 26 January 2016 in the News Straits Times, which stated amongst others, “Attorney-General Tan Sri Mohamed Apandi Ali said their investigation had showed that the prime minister had committed no wrongdoing in the cases. ‘I am satisfied that there was no evidence to show that the donation was a form of gratification given corruptly. ‘The evidence showed that the donation was not an inducement or reward for doing or forbearing in relation to his capacity as a prime minister,’ he said. He said that investigation also showed that in Aug 2013, a sum of USD620 million (RM2.03 billion) was returned by Najib to the Saudi royal family, as the sum was not utilised…” No mention was made about what the money was for and for what purpose some of the monies used.
(13) The report also stated: “The Attorney-General’s Chambers today cleared Prime Minister Datuk Seri Najib Razak of any criminal wrongdoing in the case involving a donation from the Middle East, as well as that involving SRC International. The AG’s Chambers will also return the three investigation papers on the cases, and has instructed the Malaysian Anti-Corruption Commission (MACC) to close the IPs.”
(14) The pronouncement of the attorney general about the guilt/innocence of parties being investigated may be contrary to the United Nations Guidelines on the Role of Prosecutors, in particular Article 10, which states that “the office of prosecutors shall be strictly separated from judicial functions”. The determination of guilt or innocence is a function of the judiciary, not the attorney general.
(15) The power to commence investigations and discontinue investigations rests with the relevant investigative authorities and not with the attorney general/public prosecutor. The duty of the public prosecutor is merely to determine the sufficiency or insufficiency of evidence for the purpose of prosecution, and if it is determined that the evidence is insufficient, then onvestigation papers are returned to the investigating authorities to do further investigation.
(16) On 24 February 2016, the MACC issued a statement, on the advice of their operations review panel, concerning the case involving SRC International and allegations regarding the RM2.6bn (“berhubung kes membabitkan SRC International dan dakwaan wang derma RM2.6 bilion”)
(17) The operations review panel agreed that MACC should re-submit the investigation papers concerning SRC International to the attorney general for his consideration. With regard to the matter of the investigation concerning the RM2.6bn, it acknowledges that the investigation is yet to be completed and urges the MACC to apply to the attorney general to issue the required permission for mutual legal assistance (MLA) to enable the MACC to get evidence and documents from financial institutions in other countries in connection with the RM2.6bn investigation. The relevant text from the MACC Statement (which was in Bahasa Malaysia) is as follows:
…PPO bersetuju bahawa SPRM perlu mengemukakan kembali kertas siasatan berhubung SRC International kepada Peguam Negara untuk pertimbangan. Memandangkan siasatan SPRM berhubung dakwaan wang derma RM2.6 bilion masih belum lengkap, Panel telah mengesyorkan agar SPRM meneruskan siasatannya dan memohon Peguam Negara agar mengeluarkan kebenaran Bantuan Undang-undang Bersama (MLA) bagi SPRM memperoleh bukti dan dokumen-dokumen daripada institusi kewangan di luar negara sebagai sebahagian daripada siasatan ke atas isu RM2.6 bilion…
(18) The MACC request for the necessary action by the Attorney General for mutual legal assistance (MLA) is not new. It was also made before in December 2015, as reported in Bloomberg Business. Despite efforts made, the said MACC statement could not be accessed from the MACC website.
…The Malaysian Anti-Corruption Commission said it made several proposals and recommendations for action in the case, according to a statement Thursday. While it has completed investigations involving witnesses in the country, the MACC said it still needs permission from the attorney general to get documents and evidence from overseas financial institutions. “This evidence can only be taken by the Mutual Legal Assistance process because it is tied to the provision of banking legislation of the country concerned,” the agency said. “MACC has made an application under the MLA to attorney general to obtain documents and evidence. – Bloomberg Business, 31 December 2015, ‘Malaysian anti-graft agency submits probe results of Najib funds’
(19) On the face of it, it looks like the attorney general has procrastinated in providing the necessary permission for mutual legal assistance, which was essential for the completion of investigation, and this could be perceived as an act ‘obstructing’ criminal investigations.
(20) It is now revealed that Mohamed Apandi Ali is a director of Lembaga Urusan Tabung Haji (LUTH), whereby the date of appointment is uncertain.
(21) An attorney general, also the public prosecutor, should not be director of any legal entity, as this would compromise his independence.
(22) The Federal Constitution, in Article 143, amongst others stipulate as follows:
(1) The Yang di-Pertuan Agong shall, on the advice of the prime minister, appoint a person who is qualified to be a judge of the Federal Court to be the attorney general for the Federation.
(2) It shall be the duty of the attorney general to advise the Yang di-Pertuan Agong or the cabinet or any minister upon such legal matters, and to perform such other duties of a legal character, as may from time to time be referred or assigned to him by the Yang di-Pertuan Agong or the cabinet, and to discharge the functions conferred on him by or under this Constitution or any other written law.
(3) The attorney general shall have power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for an offence, other than proceedings before a Syariah court, a native court or a court-martial…
(23) The attorney general, as such, has many roles and responsibilities, and some of these are competing obligations, if exercised at the same time is impossible. It is absurd when the attorney general considering instituting criminal proceedings and at the same time is also seen to be personally providing legal advice to the suspect/s or the potential accused.
(24) The Federal Constitution, in Article 8, states that, “All persons are equal before the law and entitled to the equal protection of the law.” As such, it can be said that no one is above the law, even the prime minister or a government-owned legal entity. When a person and/or legal entity commits an offence, it is the attorney general, without any other special consideration or treatment, who has to do the needful to institute, conduct or discontinue any proceedings for an offence.
(25) Article 12 of the UN Guidelines on the Role of Prosecutors stipulate that “prosecutors shall, in accordance with the law, perform their duties fairly, consistently and expeditiously, and respect and protect human dignity and uphold human rights, thus contributing to ensuring due process and the smooth functioning of the criminal justice system”.
(26) Article 13(a) of the guidelines states that “in the performance of their duties, prosecutors shall carry out their functions impartially and avoid all political, social, religious, racial, cultural, sexual or any other kinds of discrimination”.
(27) Prosecutors shall perform their duties without fear, favour or prejudice. Public prosecutors’ powers should be exercised independently and be free from political interference.
(28) If the attorney general is unable to act as public prosecutor, then rightly he should not. Malaysian law, in Section 376(2) Criminal Procedure Code (Act 593), states that “the Solicitor-General shall have all powers of a Deputy Public Prosecutor and shall act as Public Prosecutor in case of the absence or inability to act of the Attorney General”.
(29) As such, in this case involving Najib Razak, the Prime Minister and Finance Minister of Malaysia, and government-owned companies, Mohamed Apandi Ali clearly is unable to act as public prosecutor and the solicitor general should act as public prosecutor.
(30) With reference to the abovementioned and other matters, the following points of concern, amongst others, have arisen concerning Attorney General Mohamed Apandi Ali:
(a) The manner and timing of his appointment raises the perception that Mohamed Apandi Ali may have been appointed to speedily replace a public prosecutor who may have proceeded to institute criminal proceedings against Najib Razak (the current Prime Minister) and/or against legal entities owned and/or controlled by the government;
(b) That there may exist a perception that Mohamed Apandi Ali may have acted to derail or delay investigations against the Najib Razak (the current Prime Minister)/or against legal entities owned and/or controlled by the government. The fact that the MACC, which has been asking for the required attorney general’s permission since December 2015 for usage of the mutual legal assistance (MLA) that is required to obtain evidence and documents from financial institutions in other countries, has yet to be given the relevant authorisation required to complete investigation is a matter of concern.
(c) That Mohamed Apandi Ali may have failed to have acted professionally as a public prosecutor when it was alleged that he had advised Prime Minister Najib Tun Razak, the suspect and possible future accused in an ongoing criminal investigation, to not provide an explanation to Parliament.
(d) That Mohamed Apandi Ali allegedly attempted to speedily clear Najib Razak and SRC International of alleged crimes, including corruption and/or other breaches of law, and to stop investigations.
(e) Given the failure of Mohamed Apandi Ali to acknowledge that in these circumstances when the prime minister and government were the subject of investigations, he would be unable to perform the duties of the public prosecutor as required by law and thereby should have disqualified himself, enabling the solicitor general to carry out the duties and obligations of the public prosecutor, while he as attorney general continued to carry on his role as adviser and ‘government lawyer’ to the prime minister, cabinet and government.
(f) The fact that he still is a director of LUTH, and maybe other companies and/or legal entities, raises the question of his independence and his ability to carry out the duties of the attorney general impartially without fear and favour.
(31) As such, even if Mohamed Apandi Ali may personally not be guilty of any wrongdoing or dereliction of duties, for the good of Malaysia and for the improvement of public perception of the administration of justice, we may have to take drastic actions including the appointment of a new attorney general.
(32) The public need to have confidence in the integrity of the criminal justice system, whereby prosecutors play a crucial role in the administration of criminal justice, and as such prosecutorial discretion should be exercised independently and be free from political interference.
(33) Events of the recent past, especially concerning RM2.6bn, have eroded the confidence in the integrity of the criminal justice system, and immediate and even drastic steps need to be taken to restore confidence in the administration of criminal justice, for the good of Malaysia.
Therefore, it is hereby resolved:
(A) That the Malaysian Bar calls on Mohamed Apandi Ali to immediately resign as attorney general, for the good of Malaysia, to restore public confidence and perception of the rule of law, in particular the administration of criminal justice in Malaysia.
(B) That the Malaysian Bar calls for the solicitor general, pursuant to section 376(2) Criminal Procedure Code, to assume the role and responsibilities of public prosecutor in the cases involving Najib Tun Razak, 1MDB, SRC International and the RM2.6bn, considering the disability of the attorney general to continue to act as public prosecutor for these cases, by reason of past conduct and the existing competing and conflicting roles of the attorney general.
(C) That the Malaysian Bar also calls on Attorney General Mohamed Apandi Ali to immediately resign as director in Lembaga Urusan Tabung Haji and any positions held in companies, statutory body and/or legal entities save those positions that the law specifically requires.
(D) That the public prosecutor and prosecutors should always not only be independent but also be seen to be independent. They should not be receiving any other income, ‘donations’ or benefits from any other sources. They should also not be directors of companies or be holding any other positions in legal entities, save those specifically provided for in law.
(E) That the Malaysian Bar promote and work towards the adoption and application of the principles contained in the UN Guidelines on the Role of Prosecutors and such international standards in Malaysia.
(F) That the Malaysian Bar promote the establishment of an independent commission or committee for the purposes of the selection and recommendation to the Yang Di Pertuan Agong for the appointment of the attorney general.
(G) That the Malaysian Bar continue doing all that is necessary to promote the rule of law and a just administration of justice in Malaysia.
The motion was proposed by Charles Hector Fernandez, Francis Pereira and Shanmugam a/l Ramasamy.
19 March 2016