Bar Council: AG must reconsider MACC probe papers

The Malaysian Bar is gravely concerned over the Attorney-General’s (AG’s) decision of 26 January 2016 on the three investigation papers submitted to him by the Malaysian Anti-Corruption Commission (MACC) concerning the transfer of USD681 million, the purported donation, and the transfer of funds from SRC International Sdn Bhd (SRC), both into the personal bank accounts of the prime minister.

The AG has declared that he is satisfied that no criminal offence has been committed by the prime minister, and instructed MACC to close the three investigation papers.

It was subsequently reported that MACC decided to refer the decision of the AG to two of its statutory oversight panels: the Operations Review Panel and the Special Panel.

Both these panels reviewed the decision, and on 28 January 2016 advised MACC to engage with the AG regarding his decision.

The advice of MACC’s oversight panels is not surprising. The decision of the AG 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.

In respect of the purported donation, it has been reported that MACC’s probe is ongoing. The AG has been asked by MACC to request documents and statements from individuals from several overseas 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 AG has refused to make the request, on the basis that he has discovered no criminal offence in relation to the purported donation.

This explanation prompts many basic questions that persist and need to be answered, such as: Who specifically made the donation of USD681 million to the prime minister between 22 March 2013 and 10 April 2013? What was the purpose of this donation? If the purpose has not been identified, is it proper to conclude that no criminal offence has been committed?

The AG has also said that USD620 million of the purported donation was returned by the prime minister to the alleged donor in August 2013. This disclosure, made more than six months after the revelation of the transfer of funds into the prime minister’s personal bank accounts, raises more troubling questions: Was Bank Negara Malaysia and/or MACC notified of the repatriation of the USD620 million? What happened to the balance of USD61 million that was not returned to the donor? If the manner in which the USD61 million was utilised by the prime minister has not been ascertained, how would the presumption of corrupt practice in Section 50 of the MACC Act 2009 be rebutted?

In relation to the transfer of funds from SRC, the AG has omitted to specify the exact sum of money that was transferred into the Prime Minister’s personal bank accounts. It was previously reported that RM42 million from SRC had been deposited into the prime minister’s personal bank accounts. It has now been reported that an additional RM27 million from SRC was deposited into the personal bank accounts of the Prime Minister on July 8, 2014. This would appear to bring the total deposit from SRC to RM69 million. The AG has regrettably not addressed this apparent and glaring discrepancy.

The AG has also not disclosed who gave the approval for the transfer of monies into the prime minister’s personal bank accounts, the purpose of the transfer, and how the account numbers of the prime minister’s personal bank accounts were obtained.

The AG has stated that there was no evidence that the prime minister had any knowledge, or had been informed, of the transfer of monies from SRC into his personal bank accounts. 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. In this regard, it has been reported that RM3.2 million was paid from one of these bank accounts to two credit card accounts.

The AG 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 USD620 million of the purported donation had been returned in August 2013.

Under the circumstances, the AG’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 AG 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.

Further, the AG’s directive to MACC to close its investigation papers, particularly where the investigation is incomplete, is beyond the AG’s authority. It could be perceived as an act of interference in the investigation. The AG should render all assistance to MACC to facilitate ongoing investigations, or fresh investigations, as and when additional or new evidence is discovered.

The Malaysian Bar also disagrees with statements, attributed to certain quarters, that the discretion of the AG under Article 145(3) of the Federal Constitution to decline to exercise his prosecutorial powers is “absolute” and cannot be questioned in court. 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 AG’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 AG’s prosecutorial powers are therefore not unfettered.

The Malaysian Bar therefore urges the AG to reconsider his decision on the transfer of funds into the personal bank accounts of the prime minister, and to exercise the prosecutorial powers in Article 145(3) of the Federal Constitution appropriately.

http://www.freemalaysiatoday.com/category/opinion/2016/02/02/bar-council-ag-must-reconsider-macc-probe-papers/