The Malaysian Bar vs. The Attorney General of Malaysia & The Malaysian Anti-Corruption Commission: The Moment the Malaysian Bar Stood Up for the Key Institutions of State ______
On the 14th of March 2016, the Malaysian Bar filed a landmark challenge in the High Court of Malaya. The challenge was the first of its kind in recorded legal history. The Bar did not derive any pecuniary benefit from the action. It was a suit filed to protect the independence and integrity of key institutions of state during what was a difficult period in the country. This is the story of the Malaysian Bar’s judicial review application against the decision of the then Attorney General of Malaysia not to institute a criminal prosecution against the then Prime Minister and, further, the direction to the Malaysian Anti Corruption Commission of Malaysia (“the MACC”) to cease its investigations into the transfer of funds into the said Prime Minister’s personal bank accounts. The team that represented the Malaysian Bar was led by two doyens of the profession: Tommy Thomas and Dato’ Ambiga Sreenevasan. Their appearance for the Bar was befitting of the brief. Never before had a Bar Association filed a court action to challenge the exercise of the prosecutorial powers of the state’s chief prosecuting officer. The judicial review was filed against the backdrop of an unprecedented international financial scandal which placed Malaysia at the centre of global attention. At the heart of the saga was a Malaysian company named 1Malaysia Development Berhad (“1MDB”). 1MDB was incorporated as a state investment fund for the purposes of transforming Malaysia into a financial hub. The Malaysian Ministry of Finance was the sole shareholder of the company and the then Prime Minister was the Chairman of its Board of Advisors1.
1 “Need for PM’s approval on 1MDB deals a known fact, CEO says” , The Malay Mail 26th May 2015 (https://www.malaymail.com/s/904199/need-for-pms-approval-on-1mdb-deals-a- known-fact-ceo-says). 2
On the 18th of June 2015, the Wall Street Journal (“WSJ”) reported that 1MDB funds might have indirectly funded part of the then Prime Minister’s campaign in the 2013 General Elections2. This was followed by two news reports published by the WSJ and the Sarawak Report (“SR”) on the 2nd of July 2015 that approximately RM2.6 billion (or USD681 million) and RM42 million (or USD9 million) had been transferred into the personal bank accounts of the then Prime Minister3. The then Prime Minister responded to the allegations by issuing two statements4. The first statement asserted that “I have never taken funds for personal gain as alleged by my political opponents — whether from 1MDB, SRC International or other entities, as these companies have confirmed”. The second statement reiterated that “I have never taken 1MDB funds for personal gains”. Neither of the statements included an express denial of the then Prime Minister’s knowledge that RM2.6 billion and RM42 million had been deposited into his personal bank accounts, as reported by the WSJ and SR. A multi – agency task force was convened by the former Attorney General, Tan Sri Abdul Gani bin Patail (“Tan Sri Gani”), to commence investigations into the allegations of the transfer of funds. The task force was known as the “Special Task Force” and it comprised of a high-powered coterie of the Attorney General, the Inspector General of Police, the Chairman of the
2 “Fund Controversy Threatens Malaysia’s Leader”, Wall Street Journal, 18th June 2015 (https://www.wsj.com/articles/fund-controversy-threatens-malaysias-leader-1434681241). 3 “Investigators Believe Money Flowed to Malaysian Leader Najib’s Accounts Amid 1MDB Probe”, Wall Street Journal, 2 July 2015 (http://www.wsj.com/articles/SB10130211234592774869404581083700187014570) and “SENSATIONAL FINDINGS! - Prime Minister Najib Razak’s Personal Accounts Linked To 1MDB Money Trail MALAYSIA EXCLUSIVE!”, Sarawak Report, 2 July 2015 (http://www.sarawakreport.org/2015/07/sensational-findings-prime-minister-najib-razaks- personal-accounts-linked-to-1mdb-money-trail-malaysia-exclusive/). 4 “Najib: I have never taken funds for personal gain”, The Star Online, 3 July 2015 (http://www.thestar.com.my/News/Nation/2015/07/03/PM-statement-on-allegations/) and Press statement entitled “Kenyataan YAB Dato’ Sri Mohd Najib Razak”, issued by the Prime Minister of Malaysia, Dato’ Sri Mohd Najib bin Tun Abdul Razak on 8 July 2015 (https://najibrazak.com/bm/blog/kenyataan-yab-dato-sri-mohd-najib-razak/). 3
Central Bank and the Chief Commissioner of the Malaysian Anti-Corruption Commission (“the Special Task Force”)5. Less than a month into the life of the Special Task Force, the Chief Secretary of the Government announced that Tan Sri Gani’s services as the Attorney General had been terminated and that one Tan Sri Haji Mohamed Apandi bin Ali (“Tan Sri Apandi”) had been appointed in his place6. The termination of Tan Sri Gani’s services was unexpected as he was barely sixty – nine days from his retirement. The investigations of the Special Task Force ceased and it was subsequently disbanded and replaced by a task force named the National Revenue Recovery Enforcement Team (NRRET). Tan Sri Apandi announced that the “NRRET is not in any way involved with any investigations involving 1MDB and its related companies”7. Three days after the termination of services of Tan Sri Gani, the SR published an article titled “Arrest Warrant for the Prime Minister – The Real Reason the Attorney General Was Fired”8. The article reported of the existence of two purported draft charge sheets that “were being worked in their final draft stages by the Attorney General”. It was alleged that the draft charge sheets had been prepared during Tan Sri Gani’s tenure as Attorney General and that the charges identified the then Prime Minister as one of the accused persons. The existence of the alleged draft charge sheets was
5 Press statement titled “Media Statement: Special Task Force Investigates Allegations of Funds Transferred to the Prime Minister’s Account”, issued by Tan Sri Abdul Gani Patail on 4 July 2015 (http://www.bnm.gov.my/documents/2015/statement_20150704.pdf). 6 Press statement titled “PELANTIKAN PEGUAM NEGARA MALAYSIA”, issued by Tan Sri Dr Ali bin Hamsa on 27 July 2015 (http://www.pmo.gov.my/ksn/dokumenattached/media_statement/files/KENYATAAN_AKHB AR_PELANTIKAN_PEGUAM_NEGARA.pdf). 7 Press statement titled “NATIONAL REVENUE RECOVERY ENFORCEMENT TEAM (NRRET)”, issued by the Attorney General’s Chambers on 25 August 2015 (http://www.agc.gov.my/pdf/Latest%20Info/press/PRESS%20RELEASE%20NATIONAL%20 REVENUE%20RECOVERY%20ENFORCEMENT%20TEAM%20NRRET.pdf) and “New task force minus MACC set up to probe 1MDB”, Free Malaysia Today, 21 August 2015 (http://www.freemalaysiatoday.com/category/nation/2015/08/21/new-task-force-minus-macc- set-up-to-probe-1mdb/). 8 “ARREST WARRANT FOR THE PRIME MINISTER! - The Real Reason The Attorney General Was Fired - EXCLUSIVE!”, The Sarawak Report, 30 July 2015 (http://www.sarawakreport.org/2015/07/arrest-warrant-for-the-prime-minister-the-real- reason-the-attorney-general-was-fired-exclusive/). 4 denied by Tan Sri Apandi9 and the MACC10. However, a director within the MACC issued a statement expressing that the MACC never denied the authenticity of the purported draft charge sheets11. Subsequently, in December of 2015, the then Deputy Prime Minister reportedly informed Parliament that the then Prime Minister had been advised by the then Attorney General not to issue a public statement on the deposit of funds into his personal bank accounts as “Any statement made on the issue now can cause prejudice against the individual under investigation”12. It appeared that the then Prime Minister adhered to the advice of the then Attorney General as he elected not to personally answer questions in Parliament on the issue13. Later in December 2015, a Deputy Commissioner of the MACC was reported to have made the following pertinent statements14: (1) the MACC had submitted investigation papers to the Attorney General on, amongst others, the transfer of funds into the Prime Minister’s personal accounts; (2) the MACC had made several recommendations for action to be taken in respect of its investigations;
9 “Malaysia says charge sheet against Najib is false, an attempt to topple PM”, Channel News Asia, 31 July 2015 (http://www.channelnewsasia.com/news/asiapacific/malaysia-says- charge-shee/2021350.html). 10 “MACC lodges police report denying draft charge sheet against Najib”, The Malay Mail Online, 3 August 2015 (http://www.themalaymailonline.com/malaysia/article/macc-lodges- police-report-denying-draft-charge-sheet-against-najib). 11“MACC: We never denied authenticity of draft charge sheet”, The Star Online, 23rd October 2015 (https://www.thestar.com.my/news/nation/2015/10/23/macc-we-never-denied- authenticity-of-draft-charge-sheet/). 12 “Citing prejudice, Zahid says can’t explain RM2.6 billion donation in Najib’s accounts”, The Malaysian Insider, 3rd December 2015 (https://sg.news.yahoo.com/citing-subjudice-zahid- says-t-041712365.html ) 13 “PM followed Attorney-General’s advice to not answer questions”, The Star Online, 3rd December 2015 (https://www.thestar.com.my/news/nation/2015/12/03/pm-advice-of-a-g/ ) 14 “SRC, RM2.6b fund investigation papers now with AG, MACC says”, The Malay Mail Online, 31st December 2015 (https://www.malaymail.com/s/1032635/src-rm2.6b-fund- investigation-papers-now-with-ag-macc-says). and “SRC, RM2.6b fund investigation papers now with AG, MACC says”, and The Star Online dated 31.12.2015 titled “MACC submits SRC, RM2.6bil investigation papers to AG”, The Star Online, 31st December 2015 (https://www.thestar.com.my/news/nation/2015/12/31/macc-submits-probe-papers-to-ag/ ) 5
(3) the MACC’s investigations on the transfer of funds had not been completed and that “The MACC still needs to complete investigations regarding documents and statements involving several overseas financial institutions. These documents and statements can only be taken through mutual legal assistance (MLA) as this is tied to the banking laws of the countries involved”; and (4) the MACC had submitted a request to the Attorney General to obtain mutual legal assistance from the relevant foreign authorities in respect of its investigations. On the 26th of January 2016, the then Attorney General held a press conference where the following decision was announced15: (1) that he was satisfied that no criminal offence had been committed by the then Prime Minister in relation to three investigation papers of the MACC on the transfer of funds into the personal bank accounts of the then Prime Minister; (2) that there was no necessity for the Attorney General to make a request to any foreign state for mutual legal assistance to complete the investigations of MACC; and (3) that the Attorney General returned the three investigation papers to MACC with the instruction to close the said investigation papers (“the Attorney General’s Decision”). Following the Attorney General’s Decision, reports were published that indicated that the MACC had “collected sufficient evidence to prove a prima facie case against Najib”16. However, this was subsequently denied by the chairperson of the MACC’s Operations Review Panel17.
15 Press Release issued by the then Attorney General titled “In Relation to the Investigation Papers Returned by MACC on SRC International and “RM2.6 Billion”” dated 26.1.2016. 16 Press Statement of the MACC dated 25.2.2016 and titled “ISU SRC INTERNATIONAL DAN RM2.6 BILION: PANEL PENILAIAN OPERASI NASIHAT SPRM SUPAYA AMBIL TINDAKAN LANJUT” 17 “MACC panel chair denies sufficient evidence to prosecute Najib”, Malaysiakini, 25th February 2016. 6
Quite apart from the MACC’s investigations, at the time of the Attorney General’s Decision, there were a series of international investigations into the matters related to the MACC’s investigations. When the Attorney General’s Decision was announced, there were investigations into the transfer of 1MDB funds in Switzerland, Singapore, Hong Kong, the United Kingdom and the United States. Some of these investigations have resulted in criminal prosecutions and convictions as well as regulatory sanctions. Perhaps the most renowned international proceedings on the matter were the civil proceedings commenced by the United States’ Department of Justice (“DOJ”). These proceedings were for the forfeiture of assets allegedly misappropriated from 1MDB. The proceedings were initiated under the DOJ’s “Kleptocracy Asset Recovery Initiative” and the DOJ described the action as the “largest action brought under the initiative”. The civil complaint made thirty – two references to a “Malaysian Official 1”, who allegedly received substantial sums of 1MDB funds. Subsequently, Datuk Abdul Rahman Dahlan, a former Minister in the Prime Minister’s Department, confirmed in an interview with the British Broadcasting Corporation that the “Malaysian Official 1” was indeed the then Prime Minister18. The Malaysian Bar then filed the application for leave to commence judicial review proceedings to challenge the Attorney General’s Decision. The Bar was not alone in the institution of proceedings on the matter. Two other applications were filed to challenge the decision; one by Datuk Zaid Ibrahim, a former Law Minister, and the other by Datuk Seri Khairuddin bin Hassan, a former member and office bearer of the former ruling political party in Malaysia. In its judicial review application, the Malaysian Bar sought leave to, amongst others, seek orders of certiorari to quash the Attorney General’s Decision that no criminal offence had been committed by the then Prime Minister in relation to the investigations papers submitted by the MACC and,
18 “Rahman Dahlan: Najib is ‘MO1’but not involved in investigations”, The Star Online 1st September 2016 (https://www.thestar.com.my/news/nation/2016/09/01/rahman-dahlan-najib- is-mo1/). 7 further, to quash the Attorney General’s direction for the closure of the investigation papers of the MACC in respect of the matter. The principal grounds of the Bar’s challenge were as follows: (1) the Attorney General exceeded his powers in deciding that the Prime Minister had not committed any offence in respect of the transfer of funds into the then Prime Minister’s bank accounts; (2) the Attorney General had exceeded his powers in directing the MACC to close its investigation papers; (3) the Attorney General improperly discharged its functions in declining the MACC’s request for mutual legal assistance in respect of the latter’s investigations; and (4) the Attorney General was in a position of conflict of interest when deciding upon the MACC’s investigation papers after having previously advised the then Prime Minister on the same subject matter. The constitutional functions of the Attorney General are stated in Articles 145(2) and (3) of the Federal Constitution, which read as follows: “(2) It shall be the duty of the Attorney General to advise the Yang di- Pertuan Agong or the Cabinet or any Minister upon such legal matters, and to perform such other duties of a legal character, as may from time to time be referred or assigned to him by the Yang di-Pertuan Agong or the Cabinet, and to discharge the functions conferred on him by or under this Constitution or any other written law.
(3) The Attorney General 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.” A plain reading of these provisions show that the constitutional duties of the Attorney General are devoid of a power to decide on the innocence or guilt of an accused person when determining whether to institute criminal proceedings. Those functions are judicial in nature and vest exclusively with the judiciary. 8
However, in his decision of the 26th of January, the then Attorney General expressly cleared the then Prime Minister of any criminal wrongdoing in respect of the MACC’s investigations. There can be no other interpretation to the words (contained in the Attorney General’s Decision) that “I, as the Public Prosecutor, am satisfied that no criminal offence has been committed by YAB PM in relation to the three investigation papers”. Accordingly, the Bar argued that the then Attorney General had exceeded his constitutional powers by exonerating the then Prime Minister of any offence related to the MACC’s investigations. This was constitutionally significant as the then Attorney General had in so doing usurped the powers of the courts in deciding upon the culpability or otherwise of an accused person. The next focus of the Malaysian Bar’s challenge was the direction for the closure of the MACC’s investigation papers. The basis of the Bar’s complaint was that the then Attorney General had contravened his powers in respect of the MACC and the latter’s conduct of its investigations. It was argued that neither Article 145 of the Federal Constitution nor any other statutory provision empowered the Attorney General to instruct the discontinuance of an investigation of the MACC. This was a matter of grave public and constitutional importance. The MACC is the statutory body obliged to investigate and act upon allegations of corruption in Malaysia. Its investigations in this matter were of particular importance in view of the personalities and companies that were the subject of the allegations. It was therefore an issue of utmost seriousness for the then Attorney General to, without legal authority it was argued, impinge upon the MACC’s discharge of functions and direct the discontinuance of its statutorily enshrined obligations to investigate a matter involving alleged corruption. It followed that the central complaints of the Bar pertained to the Attorney General’s usurpation and hindrance of the exercise of powers of the integral institutions of the judiciary and the MACC. Therefore, it was hoped 9 that leave would be granted to permit full arguments on these significant issues on, amongst others, institutional independence. However, in response to the judicial review leave application, the Attorney General’s Chambers (who appeared on behalf of the Attorney General in the proceedings) raised an objection on the purported non- justiciability of the exercise of the Attorney General’s prosecutorial powers. This objection was premised on a series of appellate court decisions that accepted that the courts were not the proper forum in which to challenge the Attorney General’s decision to commence criminal proceedings. Instead, there was a school of thought that endorsed the answerability of the Attorney General before Parliament or the Judicial and Legal Services Commission (the constitutional entity that oversees the members of the judicial and legal services in Malaysia). The High Court refused to grant the Malaysian Bar leave on the primary premise of the Attorney General’s Chambers’ objection. In this regard, the learned Judge held that “the effect and meaning of Article 145 (3) has been settled by long line of decisions of the Apex Courts. These courts have held that the decision of the AG to institute or not to institute criminal proceedings is not justiciable or amenable to judicial review.” The Bar appealed against the High Court’s ruling. This appeal was dismissed by the Court of Appeal and the Federal Court (the apex court of Malaysia) refused to grant the Bar leave to challenge the Court of Appeal’s decision. It is often the case that key institutions of state are tested in times of crises. However, it is of particular concern if in such moments those institutions are inhibited from discharging their functions. Although it was unsuccessful in its challenge, the record will reflect that the Malaysian Bar stood up for the independence of those key state institutions in a period of strained legal turbulence in the country. Gregory Das Advocate & Solicitor, High Court of Malaya