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The Malaysian Bar Vs. the Attorney General of Malaysia & The

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The Malaysian Bar Vs. the Attorney General of Malaysia & The 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.
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