High-profile trials of Najib, Rosmah, Zahid can continue after AG's resignation, lawyers confirm

KUALA LUMPUR, March 1 — The high-profile corruption trials including that of former prime minister Datuk Seri Najib Razak and his wife Datin Seri Rosmah Mansor can still proceed even after Tan Sri Tommy Thomas' reported resignation on Friday as attorney-general, lawyers have confirmed.

There are currently multiple corruption trials ongoing in court now with some scheduled to resume next week, including those faced by Najib, former deputy prime minister and Umno president Datuk Seri Ahmad Zahid and former minister and Umno treasurer Datuk Seri Tengku Adnan Tengku Mansor. Rosmah’s trial is scheduled to resume the week after.

Thomas was reported on Friday to have submitted his resignation letter amid a political crisis gripping the nation.

Former Malaysian Bar president Ragunath Kesavan. ― Picture by Ham Abu Bakar

Former Malaysian Bar president Ragunath Kesavan confirmed that the trials of individuals such as Najib, Zahid, Rosmah and Tengku Adnan could continue on even without an attorney-general in place.

“The resignation of the AG will not stop the prosecutions from proceeding. Once the matter commences in court, it will proceed unless the new AG decides to drop the charges,” he told Malay Mail when contacted, also confirming that the previous appointments of ad hoc prosecutors during Thomas' tenure as AG continue to remain “valid unless revoked.”

Thomas had previously appointed private lawyers such as former judge Datuk Seri Gopal Sri Ram and Datuk V. Sithambaram to conduct high-profile corruption cases including those faced by Najib and Rosmah for free.

When asked why such trials would go on, Ragunath explained: “The law is that AG has already authorised the DPPs to proceed. No need to stop on death or resignation of AG, wheels of government moves on. However the new AG can stop it if he wants.”

Ragunath cited Article 145 of the Federal Constitution, where the attorney-general has the powers to discontinue criminal proceedings or withdraw charges.

Constitutional lawyer New Sin Yew — Picture by Miera Zulyana

Constitutional lawyer New Sin Yew also confirmed that the high-profile trials such as those of Najib, Rosmah, Zahid and Tengku Adnan could proceed as usual despite the attorney-general’s resignation.

“Short answer is nothing changes, everything remains as the same until and unless the new AG decides to change any previous decisions made by the previous AG,” he told Malay Mail when contacted, also stating that the ad hoc prosecutors' previous appointments will continue to be valid unless “revoked.”

New confirmed that any accused persons who want to ask for their charges to be dropped can through their lawyers, write in their representations to the solicitor-general while there is no attorney-general in place, saying that this is due to the solicitor general (SG) assuming the AG's role.

“In absence of an AG, the solicitor general can play the role. So the SG can bring new charges or drop current charges,” he said.

Constitutional lawyer Surendra Ananth — Picture by Miera Zulyana

Constitutional lawyer Surendra Ananth also confirmed the ongoing trials faced by Najib, Zahid, Rosmah, Tengku Adnan could go on as usual even without anyone holding the position as attorney-general.

“Everything goes on unless withdrawn by the new AG. If no AG, then solicitor general will carry out all functions of AG. So the status quo remains unless revoked,” he said, adding that all prosecutions and appointments of ad hoc prosecutors remain valid unless revoked.

With the SG empowered to carry out all powers of the AG, Surendra said this meant that charges can be dropped even without the attorney-general position being filled.

Surendra however also noted that generally the attorney-general should not drop charges "unless there is a material change in circumstances or something new comes to light," adding that the discretion of the AG and the AG's decision to drop charges should be subject to judicial review.

“There is no such thing as discretion without limits. Our courts have now opened up to testing the decisions made by the AG,” he said, arguing that the prosecution generally should not withdraw charges after a prima facie case has been proven and an accused person is called to enter defence in a criminal trial.

What the law says

Both New and Surendra confirmed that Section 40A of the Federal Constitution's Eleventh Schedule and Section 376 of the Criminal Procedure Code provides for the continuity of the Attorney-General's Chambers' affairs with the solicitor general filling in for the attorney-general when the latter is unavailable.

Section 40A states that the “Solicitor General may perform any of the duties and may exercise any of the powers of the Attorney General” unless any written law expressly says otherwise.

Section 40A also states that the lawful delegation of powers by the Yang di-Pertuan Agong or any other person to the attorney-general shall “be deemed to be the delegation of powers to both the Attorney General and the Solicitor General,” unless otherwise provided.

Section 376(2) of the Criminal Procedure Code states that the “Solicitor General shall have all powers of a Deputy Public Prosecutor and shall act as Public Prosecutor” in cases when the attorney-general is absent or unable to act.

Also under Section 376, it provides for the attorney-general's role as the public prosecutor, with the public prosecutor to have control and direction of all criminal prosecutions and proceedings, and may appoint deputy public prosecutors and assistant public prosecutors to carry out the public prosecutor's work.

After a political crisis that saw Pakatan Harapan (PH) losing the simple majority or the support of at least 112 MPs required to continue on as government, the anti-corruption organisation Centre to Combat Corruption and Cronyism (C4) had earlier this week expressed fears that any formation of a new government with parties who have members facing corruption charges in court could lead to attempts to have cases dropped.

The Istana Negara said this Friday it would collect views from the leaders of political parties with MPs on who they nominate to be prime minister.

Umno, which has many leaders embroiled in corruption trials, had this Friday declared that all its 39 MPs were backing Parti Pribumi Bersatu Malaysia (PPBM) president Tan Sri Muhyiddin Yassin as prime minister candidate.

With Umno’s choice Muhyiddin this Friday appearing to be in the lead and following the attorney-general’s reported resignation this Friday, former Umno president Najib was yesterday quoted by news portal Free Malaysia Today (FMT) as saying that he does not want his charges dropped and that he wants to continue fighting the charges of corruption and power abuse in court.

The former ruling Pakatan Harapan coalition yesterday morning declared that it was backing interim prime minister Tun Dr Mahathir Mohamad as its candidate for prime minister.

The political crisis lasting about a week seems to have come to an end yesterday, following the Istana Negara’s announcement yesterday afternoon that the Yang di-Pertuan Agong had decided to appoint Muhyiddin as the country’s eighth prime minister after determining that he is likely to command the confidence of the majority of MPs.