Attorney-general Mohamed Apandi Ali must recuse himself from exercising his powers as public prosecutor under Article 145(3) of the Federal Constitution, as he has shown himself as not a neutral decision-maker, said Malaysian Bar president Steven Thiru.
Thiru argued that Apandi's defence of Prime Minister Najib Abdul Razak in relation to the United States Department of Justice (DOJ) allegations was improper.
"The AG has placed himself in an obvious and untenable position of conflict of interest.
"He is disqualified - and must therefore recuse himself immediately - from exercising his prosecutorial powers as public prosecutor under Article 145(3). Should there be any recommendation for prosecution over these allegations, he will not be seen as a neutral decision–maker," he added in a media statement.
Thiru was referring to Apandi's recent statements, in which the AG expressed his strong concerns at the insinuations and allegations of alleged criminal wrongdoing made against the PM, in relation to the civil action filed by the DOJ.
He said it was improper for Apandi to speak for, or defend, the PM regarding the allegations made by the DOJ in respect of 'Malaysian Official 1'.
The DOJ had described Malaysian Official 1 as “a high-ranking official in the Malaysian government who also held a position of authority with 1MDB”.
It also alleged the funds misappropriated from 1MDB, were fraudulently diverted through various intermediaries, and thereafter to various bank accounts, including that of Malaysian Official 1.
“These allegations appear to relate to the private and personal conduct of the PM. By (appearing to defend the PM), the AG has exceeded his constitutional mandate,” he said.
The Malaysian Bar president reminded that the AG has two separate and distinct roles under the Federal Constitution.
“He is the principal legal adviser to the government under Article 145(2), which is a political role.
“He is also the public prosecutor under Article 145(3) (read with Sections 376 and 377 of the Criminal Procedure Code), which is a prosecutorial role. As a public prosecutor, the AG must act independently and impartially as the guardian of the public interest, uninfluenced by political considerations.
“It is not the role of the AG to speak for, or defend, any public official - such as the PM or any minister - in respect of any allegation of misconduct or criminal wrongdoing, committed in the public official’s private or personal capacity,” he said.
Thiru said as a result of this Apandi had overstepped and confused his constitutional functions and duties.
The AG, he added, is in a position of conflict of interest should there be any recommendation made to him, in his role as a public prosecutor, for legal action or prosecution of that public official.
Guan Eng's 'final warning'
The Malaysian Bar president also noted that Apandi had issued a 'final warning' to Penang chief minister Lim Guan Eng to stop commenting on the criminal charges that he is facing, or else the AG might have to disclose the evidence the prosecution has against him.
Thiru said it was also unseemly for any prosecutor to threaten an accused person with public disclosure of evidence that had yet to be produced in court.
“Such conduct by the prosecution is to be deplored as it would encourage trial by media, and would compromise the integrity of the criminal proceedings. It would be viewed as an attempt to incriminate an accused person on unproven evidence, which would lead to prejudice and thwart a fair and just trial,” he said.
The Malaysian Bar president added that if the prosecution was aggrieved by the conduct or statements made by an accused person, he is not left without recourse.
“He can have the matter resolved with legal counsel for the accused person; and if that fails, he can raise the matter with the court for appropriate orders to be made.
“However, the prosecutor must not resort to any measure that does not promote public confidence in the fair and objective exercise of his prosecutorial powers. There should be no intimidation of the accused person,” he reminded.
The Malaysian Bar, Thiru said, urged the attorney general to strictly and scrupulously observe his functions and duties as provided for in the Federal Constitution, in steadfastly upholding justice.