Malaysian Bar president Steven Thiru has described attorney-general Mohamed Apandi Ali’s move to clear Prime Minister Najib Abdul Razak of any wrongdoing as “unsustainable in law”.
This is in relation to the investigations into US$681 million (RM2.6 billion) deposited into Najib's personal bank accounts as well as further deposits from state-owned SRC International.
“The decision of the attorney-general to exonerate the prime minister of any criminal offence appears to be unsustainable in law.
“The decision seems premature, lacking in facts, bereft of particulars, and founded on questionable or inadequate reasons,” Thiru said in a statement this evening.
Apandi on Jan 25 cleared Najib of any wrongdoing after the Malaysian Anti-Corruption Commission (MACC) submitted three investigation papers on the matter.
The MACC is appealing the attorney-general’s decision after having referred it to the commission’s review panel.
Najib has denied wrongdoing and claimed the deposits in his personal bank accounts were a “donation”.
Thiru pointed out that the Malaysian Anti-Corruption Commission (MACC) had asked Apandi to request for documents and statements from individuals and several financial institutions under the Mutual Assistance in Criminal Matters Act 2002.
“This is necessary to ascertain the veracity of the evidence that MACC has already collated in Malaysia. Without this elementary scrutiny of the obtained evidence, the investigation would be incomplete.
“However, the attorney-general has refused to make the request, on the basis that he has discovered no criminal offence in relation to the purported donation,” said Thiru.
He said the attorney-general’s refusal to facilitate MACC’s investigation and instead moving to clear Najib has left several basic questions unanswered.
He added that Apandi’s revelation when clearing Najib that US$620 million of the money was “returned” to the donor had only raised more questions.
Among them are:
1) Who specifically donated the US$681 million to Najib between March 22 and April 10, 2013?
2) What was the purpose of the “donation”?
3) If purpose is not identified, is it proper to conclude no criminal offence was committed?
4) Was Bank Negara or MACC notified of the repatriation of US$620 million?
5) What happened to the balance US$61 million?
6) If the manner in which the US$61 million was utilised by Najib has not been ascertained, how can corruption be ruled out?
7) What is the exact sum transferred from SRC International to Najib’s accounts as there were reports of RM41 million followed by another RM27 million.
8) Who gave the approval for the SRC International transfers into Najib’s bank accounts, what was the purpose and how was the account numbers obtained?
Thiru noted that in the case of the SRC International transfers, Apandi had cleared Najib by claiming the prime minister had no knowledge of them and was under the impression that they were all part of the US$681 million donation.
“However, an account holder is deemed to know, and cannot claim to be unaware, of transactions concerning his personal bank accounts. Knowledge can be implied or inferred in certain circumstances.
“The attorney-general further stated that the evidence shows that the prime minister believed that ‘all payments which were made by him were made from the donation received from the Saudi royal family which was earlier transferred to his personal accounts’.
“This finding appears implausible, as RM27 million from SRC was reportedly transferred into the prime minister’s personal bank accounts on July 8, 2014, which was after the balance of US$620 million of the purported donation had been returned in August 2013,” he said.
Thiru pointed out that Najib had also reportedly paid RM3.2 million in credit card debt from one of the accounts that received the SRC International funds.
“In the circumstances, the attorney-general’s decision that no criminal offences have been committed in respect of MACC’s investigation papers is hasty and difficult to justify.
“Indeed, there have been reports that the attorney-general rejected MACC’s recommendations in the investigation papers, that three charges pursuant to Section 403 of the Penal Code (dishonest misappropriation of property) be levelled against the prime minister,” he said.
Thiru added that the attorney-general’s directive for MACC to close its investigation papers, particularly when they remain incomplete, is beyond his authority and can be seen as interference.
“It could be perceived as an act of interference in the investigation. The attorney-general should render all assistance to MACC to facilitate ongoing investigations, or fresh investigations, as and when additional or new evidence is discovered,” he said.
Thiru said the Malaysian Bar also disagrees that the attorney-general has absolute authority under the constitution in refusing to prosecute any individuals.
“The notion of absolute discretionary powers is contrary to the rule of law. All legal powers - even a constitutional power - have legal limits.
“Thus, the modern and prevailing view is that the attorney-general’s decision not to prosecute is open to challenge in a judicial review action, if the exercise of the prosecutorial discretion is tainted by bad faith, dishonesty or extraneous purposes.
“The attorney-general’s prosecutorial powers are therefore not unfettered,” he said.
Thiru urged Apandi to reconsider his decision and to exercise his prosecutorial powers appropriately.