KUALA LUMPUR, Sept 9 — Former Chief Justice Tun Abdul Hamid Mohamad today took the prime minister and Attorney-General Tommy Thomas to task over the handling of the corruption trial of Finance Minister Lim Guan Eng, who was acquitted after the prosecution dropped its charge.
In a strongly worded 13-page statement, Abdul Hamid also questioned Thomas’ integrity and calibre as an AG, saying it was impossible the latter did not play a role in Lim’s acquittal despite withdrawing as public prosecutor in the case.
He pointed out that until the Federal Constitution and the Criminal Procedure Code are both amended to distinguish the AG’s prosecutorial role from his advisory role, Thomas still functions as both.
“That is what he is paid for. There is no question of him only doing the AG’s work and not PP’s. I also pointed out that AGs like Abu Talib, Mohtar Abdullah and Gani Patail always led the prosecution in high profile, public interest cases,” he said, referring to the past AGs before Thomas.
Abdul Hamid also claimed Datuk Mohamad Hanafiah Zakaria, the head of the trial and appellate division in the AGC, had no choice but to follow the AG’s beat in withdrawing the corruption charge against Lim.
“As head of a division, in the AGC hierarchy, he is on the third layer, with AG on the first later, the Solicitors General on the second layer.
“Do you think he does not know that Tommy Thomas was the counsel for Lim Guan Eng in that case immediately before his appointment as AG? Do you think he does not know that Lim Guan Eng is the Minister of Finance? Do you think he does not know that that if Lim Guan Eng is convicted, most probably he will lose his job? Do you think he does not know that Tommy Thomas was the DAP’s candidate for AG? Do you think he would not perceive the reason for his appointment? Do you think he would not perceive, rightly or wrongly, the decision Tommy Thomas would prefer? Do you think he does not know that his promotion depends on Tommy Thomas?
“Even if Tommy Thomas does not sign the letter to withdraw the charges, on whose behalf did Datuk Hanafiah sign it?” Abdul Hamid asked.
Last week, Lim and businesswoman Phang Li Koon were acquitted by the High Court in Penang over the purchase of his house on Pinhorn Road below market value while Lim was Penang chief minister.
The high-profile case happened when the Barisan Nasional held federal power.
Mohamad Hanafiah issued a statement explaining that Thomas had recused himself and had played no role in the prosecution, but that he had been tasked by Solicitor-General Datuk Engku Nor Faizah Engku Atek and the then Solicitor-General II Datin Paduka Zauyah Be T. Loth Khan.
The senior government lawyer added that it was his decision to withdraw the charges, saying there was new evidence to show the prosecution would have failed; however, he said he had only asked the High Court for a discharge and not an acquittal.
However, the retired judge did not buy Mohamad Hanafiah’s explanation.
“Even before he was tasked to study the case by AG, did the lead DPP (deputy public prosecutor), at least, not brief him, from time to time, how the case was proceeding?
“Being such an important case, did he not call the lead DPP, from time to time to know about the case? Did the lead DPP of the case not inform him of the effects of the cross-examination and the discovery of fresh evidence and discussed with him how to overcome it?” Abdul Hamid asked.
He also asked Thomas if the AGC would have reviewed the corruption charge if Lim were not the finance minister and if the AG would have done the same if only Phang were the sole accused.
Abdul Hamid fired a broadside at the Malaysian Bar too, noting its president George Varughese had defended the withdrawal of charges against Lim — who is also DAP secretary-general — and Phang.
“How far is the Bar Council prepared to go to support the first AG from the Bar? The Bar Council’s integrity and ‘independence’ is also at stake,” the ex-top judge said.
Abdul Hamid next took Thomas to task for taking on private lawyers to prosecute former prime minister Datuk Seri Najib Razak, who has been charged with criminal breach of trust, money laundering and power abuse over funds siphoned from SRC International Sdn Bhd, a former subsidiary of 1Malaysia Development Berhad.
He questioned Thomas’ ability as the AG after the latter engaged respected senior lawyer Datuk Sulaiman Abdullah to head the prosecution team; judge-turned-lawyer Datuk Seri Gopal Sri Ram to draft charges against Najib; and the choice of S. Sitpah, a maritime law expert from Thomas’ former law firm, to handle matters relating to the superyacht, Equanimity.
“Never in the legal history of Malaysia did an AG admit he was unable to cope with the demands of the work as an AG that he had to appoint a private lawyer to do the prosecution of a case. Or, is he chickening out because he had no experience in prosecution and this case is certainly not the kind of case for anyone to learn to prosecute?” Abdul Hamid said, adding that Thomas was given eight months to prepare for the case.
He claimed Sulaiman lacked experience in leading evidence for the prosecution in a criminal trial and cast doubt on Sitpah’s relevance to work on a criminal case when she is a civil lawyer.
“In appointing Sulaiman and Gopal Sri Ram to do the work of the prosecutor, Tommy Thomas has also demoralised the whole of the Appellate and Prosecution division, indeed the whole of the AGC.
“It is as if he has no confidence in his officers who had been doing the work for decades. It is as if they are incompetent,” Abdul Hamid said.
On Tun Dr Mahathir Mohamad, he chided the prime minister for belittling a reporter when asked for comment on the Malaysian Anti-Corruption Commission’s expression of shock over Lim’s acquittal.
“Listening to the way he answered the questions, clearly, he was trying to belittle the reporter who asked him the question. In so doing, first he shifted the blame to the court for acquitting Lim Guan Eng instead of to AG for not further prosecuting the case.
“The truth is that the judge had no choice but to discharge Lim Guan Eng, with or without acquittal, because the prosecution was not going to prosecute him further,” Abdul Hamid said.
He said Dr Mahathir was also “manifestly wrong” in saying the MACC can appeal the acquittal decision.
However, Abdul Hamid added that the prime minister can be excused for his ignorance on the technicality of the matter.