Courts cannot compel AG to commence criminal proceedings against anyone, says judge

Men walk past a 1Malaysia Development Berhad (1MDB) billboard at the funds flagship Tun Razak Exchange development in Kuala Lumpur March 1, 2015. — Reuters pic
Men walk past a 1Malaysia Development Berhad (1MDB) billboard at the funds flagship Tun Razak Exchange development in Kuala Lumpur March 1, 2015. — Reuters pic

KUALA LUMPUR, Feb 15 — The courts cannot compel the Attorney-General (AG) to institute any criminal proceedings against an individual.

Datuk Hanipah Farikullah said this in her 41-page written judgment on a judicial review application involving 1Malaysia Development Berhad (1MDB), which was made available to reporters today.

“This is because Article 145(3) of the Federal Constitution confers the AG very wide discretion over the control and direction of all criminal prosecutions.

“Not only may he (AG) institute and conduct any proceedings for an offence, he may also discontinue criminal proceedings that he has instituted.

“And the courts cannot compel him to institute any criminal proceedings which he does not wish to institute or to go on with any criminal proceedings which he has decided to discontinue,” she said.

The judge agreed with senior federal counsel’s submissions that the article empowered the AG to institute, conduct or discontinue any proceeding for an offence other than those before a Syariah Court, Native Court or Court Martial.

She made the ruling on November 11, last year, when dismissing the leave application for judicial review by former Batu Kawan Umno vice head Datuk Seri Khairuddin Abu Hassan against the AG.

Khairuddin had challenged Mohamed Apandi’s decision that Prime Minister Datuk Seri Najib Razak Najib did not commit any criminal offence in regard to the RM2.6 billion donation, transfer of funds by SRC International into his personal banking account and provision of a loan by pension fund KWAP to SRC International.

Hanipah also held that the issue of conflict of interest as contended by  Khairuddin did not arise when Mohamed Apandi decided not to charge the prime minister pertaining to 1MDB and related issues.

She also did not accept the applicant’s argument that the AG being appointed by the Yang di-Pertuan Agong persuant to the advice of the prime minister was therefore in conflict of interest to decide whether or not to charge Najib on the 1MDB issue and its related cases.

“Article 145(3) of the Federal Constitution must always be borne in mind,” she said.

She further dismissed another contention by the applicant that the AG’s instruction to the Malaysian Anti-Corruption Commission (MACC) to close its investigation files was ultra virus the AG’s power under Article 145(3).

“The AG instructed the files to be closed since there was no further action to be taken as no offence was disclosed from the Investigation Papers. This is the usual practice adopted by the Attorney-General’s Chambers.

“In my view the instruction of “No Further Action” and “Kemas Untuk Simpanan” (tidy for keeping) has nothing to do with the exercise of the AG’s discretion under this Article,” she said.

She also asserted that there was no merit in Khairuddin’s contention about the AG’s instruction to MACC, which “merely relates to the instruction commonly minuted in the Investigation Papers following a decision not to prosecute”.

“It must be stressed that the AG is expected to act honestly and without fear and favour. However, the avenue of the person being unhappy with his decision is elsewhere and not to the court,” she added.

On November 11, last year, Hanipah dismissed Khairuddin’s leave applications for a judicial review to challenge the AG’s decision to close investigations on the transfer of a RM2.6 billion donation and funds from SRC International Sdn Bhd to Najib’s account, and his prosecution over the issue.

She also dismissed former Minister in the Prime Minister’s Department Datuk Zaid Ibrahim and the Malaysian Bar’s leave application related to the same issues.

Khairuddin filed the judicial application on February 3, last year, seeking a court order to quash Mohamed Apandi’s decision on January 26, last year to exonerate Najib of any wrongdoing relating to MACC’s investigations into the three matters. — Bernama

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