Veteran lawyer Param Cumaraswamy holds the opinion that attorney-general Mohamed Apandi Ali does not hold the power to direct an investigating agency, such as the Malaysian Anti-Corruption Commission, to close its files.

Apandi should be more transparent, considering the prevailing public perception on the investigations into the funds in Prime Minister Najib Abdul Razak’s personal bank accounts, Param, a former United Nations special rapporteur for the Independence of Judges and Lawyers, told Malaysiakini today.

“Article 145 (3) of the federal constitution states that the AG 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.

“He certainly has no power to direct another agency, like the MACC, to close its files on a matter. If there is insufficient evidence to prosecute, it is only proper for the AG to advise MACC to gather further evidence.

“As a former judge of the Federal Court, Apandi should know better,” said Param ( photo ), a former Bar Council chairperson and a winner of the Gruber Prize for Justice.

His sentiments are shared by another lawyer, Hanif Khatri Abdulla, who said Apandi, as the AG, has no business to interfere with the investigation of any case by any investigating agency.

“The AG can only decide to charge, or not to charge, Najib based on the investigation papers available before him. The AG has no business to instruct the MACC to close its investigations,” Hanif ( photo ) said.

Param and Hanif were asked to comment on Apandi's decision in directing the MACC to close the cases against Najib, after deciding not to prosecute the sitting prime minister.

It was reported yesterday that the MACC had recommended that charges be filed against Najib under Section 403 of the Penal Code for dishonest misappropriation of property.

The report also referred to the MACC's difficulty in getting Apandi to agree to giving the prosecutors clearance to gather evidence overseas, under the Mutual Legal Assistance treaties.

At a press conference on Tuesday, Apandi said since no criminal offence was committed, there is no necessity for Malaysia to make a request for Mutual Legal Assistance from any foreign state for the purpose of completing the investigations.

Ex-AG Abu Talib agrees as well

Former attorney-general Abu Talib Othman was reported in The Malaysian Insider today as also saying that Apandi has no authority to order the MACC to close investigations into the RM2.6 billion donation in Najib's bank accounts.

Abu Talib ( photo ) said Apandi had not helped MACC to obtain documents and statements from abroad, as part of its investigation, under the Mutual Legal Assistance treaties.

"Under Article 145 (3) of the federal constitution, the AG has power only to institute, conduct and discontinue any (criminal) proceedings, but has no authority to order any investigation agency to close its investigation papers.

"This is a case of public importance that has attracted worldwide attention. The AG must help the MACC to collect evidence as the source of the fund is outside Malaysia," Abu Talib told the news portal.

However, Bar Council criminal law committee co-chairperson Salim Bashir feels otherwise. Salim said Apandi, as the public prosecutor in charge, can direct the case to be closed.

“Look at Article 145 of the federal constitution. If the MACC is not satisfied, what it can do is to challenge the AG's decision in court.

“The MACC can challenge the matter, which will be rare,” Salim told Malaysiakini .

Earlier today, Lawyers for Liberty legal coordinator Michelle Yesudas said a court ruling last year disputes the AG's powers as absolute.

"In a recent case, High Court judge Vazeer Alam Mydin Meera ruled that the decision of the AG can be challenged if it is based on an irrelevant consideration, exercised unlawfully, or if it is an abuse of power," Michelle said in citing Justice Vazeer's ruling.

This came with the court dismissing former AG Abdul Gani Patail's application to strike out the suits by former Commercial Crime Investigation Department director Ramli Yusuff and his lawyer Rosli Dahlan.