HAKAM Applauds AG’s Decision Not To Appeal High Court Ruling That Denial of Bail Under SOSMA is Unconstitutional

HAKAM applauds the Attorney General’s statement today dated 13th December 2019. The Attorney General rightfully observed that Section 13 of SOSMA which denies bail to an accused is:

Pic from the Reuters

(a) unconstitutional as it takes away the judicial power of the Courts which forms the basic structure of our Federal Constitution, as held by our Federal Court in Semenyih Jaya & Indira Gandhi; and
(b) unacceptable because it offends the fundamental concept that an accused is innocent until proven guilty.

HAKAM is particularly encouraged by the Attorney General’s decision not to appeal Justice Nazlan’s decision which rightfully held that Section 13 of SOSMA is unconstitutional.

HAKAM also supports the Attorney General’s observation that the striking down of Section 13 of SOSMA does not mean that there will be jeopardy to public safety – this is because bail can still be denied by a Judge if there is sufficient evidence that the accused poses a risk to the public, as in all other criminal cases.

HAKAM is confident that the Courts in our country will take note of this development and proceed to exercise their discretion to allow bail to accused persons detained under SOSMA, should the circumstances call for it.

HAKAM trusts the wisdom of the Courts to exercise such discretion on bail judiciously in order to strike an appropriate balance between the rights of an accused and public safety.

Finally, HAKAM reiterates its call to the Government to fulfill its manifesto promise of abolishing SOSMA in its entirety.

Lawyer: AG can opt to be either govt adviser or public prosecutor

Source: FreeMalaysiaToday

Gurdial Singh Nijar says Tommy Thomas can institute the de facto change by practice pending a constitutional amendment to separate the roles. Pic taken from FMT News

PETALING JAYA: Attorney-General Tommy Thomas can opt to either function as adviser to Putrajaya or be a public prosecutor pending an amendment to the Federal Constitution to separate the two roles, a constitutional lawyer said.

“He (Thomas) can institute a change by practice,” said Gurdial Singh Nijar.

He said this when asked how Thomas could function without a conflict of interest when the roles of AG and public prosecutor were inseparable under Article 145 (3) of the Federal Constitution.

That provision states that the AG shall have the discretion to institute, conduct or discontinue any proceedings for an offence in a civil court.

Gurdial said Thomas had been mindful of the need for a separation of the roles as early as 1983. Read more

AG’s appointment: Lessons learnt — Gurdial Singh Nijar

Source: The Sun Daily

(Deputy President, HAKAM)

AS THE saying goes, the greater the storm, the brighter the rainbow. Smiling colours beamed when the Yang di-Pertuan Agong finally consented to the appointment of lawyer Tommy Thomas as the 10th attorney-general of Malaysia/Federation of Malaya. After a cliffhanger thriller to the finish – as royalty prevaricated in the face of the prime minister’s insistence that the government’s choice was not negotiable.

The short announcement on behalf of His Majesty alluded to the King’s “disappointment and worry about inaccurate and negative media reports of late which could threaten peace and harmony in the country”. The country – barely over the euphoria of a change of government – heaved a welcome sigh of relief. A potential constitutional crisis saved from the brink.

Are there lessons to be drawn from this episode? Several, I believe.

Read more

Citizens no longer need fear the ‘midnight knock of the policeman’, says new A-G

Source: The Malaysian Insight

Attorney-General Tommy Thomas says selective prosecution will end immediately and citizens who have done no wrong need not fear midnight raids from authorities anymore. – The Malaysian Insight pic by Nazir Sufari, June 6, 2018.

NEWLY appointed Attorney-General Tommy Thomas said that “selective prosecution will immediately cease” and that all law-abiding citizens no longer need to fear oppression from enforcement authorities.

“Those who commit no wrong have nothing to fear. Malaysia is a free country. We should not fear the midnight knock of the policeman,” Thomas told reporters at the first press conference since his appointment.

“For those who flout the law, (they) will be met with the full force the law regardless of their station in life.

“On my part, I promise to do the right thing, that is to tell the truth and to do justice. Justice must not only be done but it must be seen to be done,” he said. Read more

Judges to get discretionary powers over death sentence, says Apandi

Source:The Malaysian Insight

The Attorney-General’s Chambers is ready to present to Parliament the draft bill to amend the Dangerous Drug (Bill) 2017 prescribing mandatory capital punishment for drug traffickers.

Attorney-General Mohamed Apandi Ali said the amendment would allow the judges to exercise discretion in meting out the mandatory death sentence.

He said the proposed amendments were drafted based on his experience as a judge.

“The amendments are from me and are based on my experience as a High Court and Appeals Court judge.

“Many judges find it difficult to pass the death sentence on offenders whom they feel do not deserve the punishment.

“But they have no choice because it is mandatory. Therefore, I propose that the government be more flexible and do not  discriminate against the offenders, “he told a press conference in Putrajaya today. Read more

Police back on 1MDB case because I am dissatisfied with report, says A-G

Source: The Malaysian Insight

ATTORNEY-GENERAL Mohamed Apandi Ali says he has tasked the police to reopen investigation into 1Malaysia Development Bhd (1MDB) because he is dissatisfied with their report.

Speaking to reporters in Putrajaya today, Apandi said parts of the report were not backed up with sufficient evidence.

“I cannot tell you what I have asked the police to investigate. All I can say is there were parts that lacked evidence.

“There’s at least 25% to 35% of the report that I am not satisfied with,” said the former Federal Court judge. Read more

Zaid: Denial of leave to question AG ‘greatest travesty’

Source: FMT News

PETALING JAYA: Zaid Ibrahim says the decision of the Federal Court to deny him leave to challenge the discretion of Attorney-General Mohamed Apandi Ali in not prosecuting Prime Minister Najib Razak over the RM2.6 billion donation was the “greatest travesty of them all”.

The former defacto law minister also took issue with the three-man bench led by Chief Justice Raus Sharif.

“All I was asking for was leave (that is, the permission of the court) to start an action against the attorney-general. I don’t have to prove anything at this stage, as I just need to show there are serious questions to be considered.

“The threshold is low and generally, all over the world, leave will be granted without much fuss. Yet, I could not even pass the gate,” Zaid said, questioning the rationale for the decision. Read more

Bar, Zaid, Khairuddin lose case against AG ‘failing to prosecute’ Najib

Source: FMT News 

PUTRAJAYA: The 18-month battle by the Malaysian Bar and two government critics to review the prosecutorial power of the attorney-general (AG) in refusing to frame charges agains Prime Minister Najib Razak over the RM2.6 billion donation has come to an end.

The Federal Court, in dismissing their leave applications, today affirmed the findings of the High Court last year that the A-G’s discretion could not be questioned.

A three-man bench chaired by Chief Justice Raus Sharif said the issue was settled following a series of past cases. Read more

CJ declines to recuse himself in historic application by Bar, two others

Source: FMT News 

PUTRAJAYA: No one in Malaysia’s legal history has ever applied for a chief justice to recuse himself from hearing a case – until today.

The Malaysian Bar and two government critics today applied to disqualify Chief Justice Raus Sharif from hearing their leave applications in their case against the attorney-general’s failure to prosecute Prime Minister Najib Razak over the RM2.6 billion donation.

However, the three-man bench of the Federal Court, chaired by Raus himself, dismissed the application, saying there was no merit to the case.

“However, rest assured that any decision will be made with two others based on facts and law,” he told lawyers for the applicants.

Others on the bench were justices Ahmad Maarop and Azahar Mohamed. Read more

Hearing of Malaysian Bar’s Federal Court leave application to appeal against decision denying leave for judicial review of AG’s decsion not to prosecute PM et al

Leave Application in the Federal Court of Malaysia (28 July 2017): 
 Malaysian Bar v Attorney General of Malaysia & Malaysian Anti-Corruption Commission

On 14 Mar 2016, the Malaysian Bar took an application for leave to commence judicial review proceedings to challenge the Attorney General’s decision of 26 Jan 2016, purportedly made under Article 145(3) of the Federal Constitution (“Article 145(3)”), not to prosecute the Prime Minister, and to direct the Malaysian Anti-Corruption Commission (“MACC”) to close its investigations into the alleged transfers of RM2.6 billion as well as funds from SRC International Sdn Bhd, both into the Prime Minister’s personal bank accounts (“Attorney General’s Decision”).

The application was dismissed by the High Court on 11 Nov 2016, and the appeal to the Court of Appeal was dismissed on 4 Apr 2017.  The Court of Appeal has not delivered its written grounds of judgment.

The Federal Court has fixed 28 July 2017 (Friday) for the hearing of the Malaysian Bar’s application for leave to appeal against the Court of Appeal’s decision (Malaysian Bar v Attorney General of Malaysia & Malaysian Anti-Corruption Commission; Civil Application No: 0821905/2017).

The questions of law that the Malaysian Bar will place before the Federal Court relate primarily to the powers of the Attorney General, whether under Article 145(3) or otherwise, and the manner in which the Attorney General should deal with requests made by the MACC for mutual assistance from foreign agencies under the Mutual Assistance in Criminal Matters Act 2002 (“MACMA”).

At the High Court and Court of Appeal, the Malaysian Bar’s position in respect of these issues was that:

(1) the Attorney General’s Decision had prematurely and wrongfully exonerated the Prime Minister from any criminal wrongdoing;

(2 )the Attorney General’s Decision was not a decision made under Article 145(3), because that provision does not empower the Attorney General to decide on the innocence or guilt of an accused person;

(3) in any event, the Attorney General was in a position of conflict of interest and was thus disqualified from making the decision being challenged.  The Attorney General had previously advised the Government on the subject matter in question, and was therefore conflicted from subsequently deciding whether to prosecute the Prime Minister in relation to the same matter;

(4) the Attorney General had improperly directed the MACC to close its investigations (which the MACC had not yet completed) into the alleged transfer of RM2.6 billion into the Prime Minister’s personal bank accounts, as the Attorney General did not have any power to do so; and

(5) the Attorney General had wrongfully refused to consider the MACC’s request for mutual assistance from foreign agencies in respect of its incomplete investigations, as he failed to adequately consider whether the request was relevant to the subject matter of the MACC’s investigations.

It is noteworthy that the High Court did not decide the primary issue of whether the Attorney General’s Decision was permissible under Article 145(3).

The High Court relied on a series of appellate court cases to support its decision.  However, these cases do not directly deal with the exercise of the Attorney General’s discretion under Article 145(3) not to institute a prosecution, which is the decision that the Attorney General made in this case.  The High Court Judge was also unwilling to adopt the current position in other jurisdictions that allows for a review of this discretion of prosecuting authorities (which is the function discharged by the Attorney General).

Critically, the cases relied on by the High Court do not deal with a situation where the Attorney General exercised powers that are not conferred under Article 145(3) or any other provision of law.

The Malaysian Bar’s leave application before the Federal Court therefore provides the Court with an apposite opportunity to resolve the issue of the scope of the Attorney General’s powers under Article 145(3), and the Court’s role when the Attorney General acts in excess of the powers granted to him.

The Attorney General’s Decision is connected with various other ongoing matters, such as the criminal investigations, prosecutions and convictions in several other jurisdictions in respect of 1Malaysia Development Berhad (“1MDB”) and, further, the filings by the United States Department of Justice (“DOJ”) to recover assets linked with alleged misappropriated funds belonging to 1MDB.

In this respect, the Malaysian Bar’s Federal Court leave application will be heard in the wake of the DOJ’s recent civil proceedings to recover USD540 million in assets associated with funds allegedly misappropriated from 1MDB.  The DOJ’s proceedings aptly demonstrate that the investigations into this matter must continue, as the matter remains dynamic, with fresh evidence being uncovered on a regular basis.  This vindicates the Malaysian Bar’s position in the judicial review application, namely that the Attorney General had acted prematurely and wrongfully in exonerating the Prime Minister of criminal wrongdoing and in directing the closure of the MACC’s investigations.

The Malaysian Bar’s leave application in the Federal Court on 28 July 2017 (Friday) will be argued by Tommy Thomas and Ambiga Sreenevasan.

Roger Chan Weng Keng
Malaysian Bar