Rosli Dahlan Case: Prosecutorial Misconduct by A-G Gani Patail

by Din Merican

I generally avoid invitations for buka puasa during Ramadan as I do not want to miss my terawih prayers. But hosts and venues of buka puasa these days are so sensible that they arrange for prayer places (“musolla”) and even have an imam to conduct terawih prayers that makes it more attractive for guests to attend such events.

That was one of the attractions for the buka puasa at the nasi arab restaurant Sahara Oasis at Jalan Ampang held by the Equestrian Association of Malaysia (EAM) recently.The guests list was a delight.

I met old friends like Dato Seri Jamaludin Jarjis, Ambassador at Large to the US, and other known personalities in the horse riding fraternity. But my greatest delight was when I saw my young friend, lawyer Rosli Dahlan, entering the restaurant and was fondly embraced by most of the guests and riders of the EAM. He was clearly amongst old friends and familiar faces. Only then I knew that Rosli was one of the founders of the Malaysian Endurance Riding Society. (Endurance riding is a very popular sport especially when the Sultan of Terengganu was the Yang Di Pertuan Agong.)

JAWI Matter

I seized this chanced meeting to share a table to buka puasa with Rosli Dahlan. There was so much I wanted to ask him. The Borders case is one. Rosli is counsel for that case. I wanted to know why JAWI asked for the Syariah case to be brought forward. I wanted to know if that was part of JAWI’s plan to circumvent the Judicial Review proceeding which is pending in the civil High Court. I tried to coax him to criticize JAWI’s unprofessional and unethical actions that are bound to generate bigger controversy. But, tried as hard as I did, Rosli would not say anything.  All he would say was that he hoped the High Court would issue a Stay Order against JAWI.

Ramli Yusuff Case settled(?)

I then asked him a more personal question. I asked him if it is true that Dato Ramli Yusuff has settled with the government. I had heard that Dato Ramli had agreed not to sue former IGP Musa Hassan, A-G Gani Patail, the government and the mainstream media for fixing Dato Ramli on the RM 27 Million Cop Story and the charges that were leveled at Dato Ramli.

I had heard that the settlement would result in all the criminal appeals filed by A-G Gani Patail to be withdrawn and Dato Ramli would be reinstated with full rank and honors and some payments. I told him that if the rumours were true, then I am very happy for Dato Ramli and for him that their ordeals have finally come to an end. That would be a victory of sorts without having to be fought out in court and incurring huge legal costs. I knew that it would cost Rosli a bomb in legal costs for his criminal trial.

I was totally unprepared for Rosli’s response. He gave me a long severe unflinching look. Then he said –“Din, you are talking to the wrong man. If you want to say all that, if you want to go congratulate someone, then go shake Dato Ramli’s hand, not mine !”

It was a very sharp rebuke that stunned me. Immediately, Rosli got up. I saw him walking to the musolla. I wasn’t sure what I did wrong. I wasn’t sure if I had offended him. I finished my buka food and went to the musolla where I saw that Rosli was just about to finish his prayers in one dark quiet corner. I performed my maghrib prayers and saw that Rosli was still holding up his cupped hands making the doa and looking upwards as if he was conversing with God.

I thought I heard a muted sob. I waited, and it was a long wait. Rosli sat there fixated, oblivious to the comings and goings of other people who took turns to pray in that musolla. He seemed to be lost in a very long doa as if a tormented soul was seeking solace from the Almighty. I waited still.

Finally, he finished. He turned and looked at me to make salam and I saw his glistening eyes. I shook his hands and hugged him. He relented and let me hug him for a few seconds that felt like several hours when two men embrace in genuine friendship and camaraderie. I asked Rosli – “What is wrong my young friend? Are you ok? ” He gave me his familiar dimpled smile and the determined glint came back to his eyes. He said “Let’s makan”.

While at the dining table to continue our buka puasa, I asked Rosli again if the settlement talk is true. He asked me to call Dato Ramli to get the real answer. By then, other friends had joined our table and everyone expressed their happiness  that this whole episode is over for him and they jested that he can now go back to his first love– horseback riding!

But I could see that Rosli was hiding something from everyone by the way he answered questions disjointedly in between his laughter and eating. Clearly, he was trying to avoid any probing by talking light things and jesting all the time. When the crowd at our table receded, I decided to get serious.

I told Rosli that having supported him throughout his trial I deserve to know how matters would conclude, not because I am a busybody but because I consider his case of some importance since it is about the abuses in government. I reminded him that on the day of his acquittal, he had made some sort of a pledge to prevent these abuses and to expose the rogues in government.

MACC offered a Bargain on behalf of the  A-G

My remarks seemed to strike a chord with Rosli. He looked at me and apologised for his earlier conduct. He said that he is very grateful for all my support. He then told me that some months back, he had been approached by Dato Razak Musa, the MACC Director of Prosecution, as a messenger of A-G Gani Patail. Dato Razak said that if Rosli were to withdraw his civil suits, A-G Gani Patail would allow the  MACC to withdraw the criminal appeal that is pending against him.

I was stunned to hear that bargain was offered by the MACC. That smacks of “prosecutorial misconduct” a term used by one commentator on my blog, Mr Bean, in describing the prosecution actions against Rosli. This is a real abuse of power. This is a blatant bully tactic.

Furthermore, it is totally wrong to commence or pursue prosecution against an innocent person just to strike fear in him or to make a bargain to cover up for an earlier wrongdoing. This is total dishonor to the Office of the A-G.

This is not what Article 145(3) of the Federal Constitution intended when it confers discretionary powers upon the AG to commence and discontinue criminal prosecution against anyone in Malaysia. It is this arrogant abuse of power by the AG that results in selective prosecution in Malaysia.

I asked Rosli if that’s what is troubling him and what is happening to his cases. Rosli said that all the civil cases are coming up for hearing very soon and he is not too hopeful. He said that in one case, the matter came up in the court of appeal several times and it gets postponed every time because one judge or another would seek recusal.

No Deal, says Rosli

Rosli then said something under his breath that I thought sounded like “I might as well be judged by all my enemies”. I did not ask for clarification as he sounded sad enough already.

Rosli said that Ramadan had become so painful for him because he was abused, humiliated, arrested, detained and charged by the MACC in Ramadan 2007. He said that he couldn’t possibly accept the bargain offered by Dato Razak Musa as that would mean losing his dignity and self value. Rosli then wryly said that it’s not just a cruel irony that the MACC’s appeal against his acquittal will be coming up next week on August 2 during Ramadan, but that it was orchestrated to remind him of the things that those in power can do to inflict pain and suffering.

After saying all these, Rosli must have suddenly realised that he had said too much and then requested “Din, please don’t write any of these. It’s personal between us ok?” I did not reply.

To Rosli, I have to say sorry but I can’t keep what he had told me as a private matter.

It is not a private matter when there is prosecutorial misconduct by A-G Gani Patail and Razak Musa in abusing their powers to pursue the appeal against his acquittal only because they could not get Rosli to withdraw his civil suits.

To Rosli, I have to say that I respect and salute him more for not caving in. Only in times of crisis like this that we can separate the men from the boys. To Rosli, I say La Tahzan (Don’t be Sad) because God is watching over you and so will we!