AG not exempt from prosecution, says Hanipa

The power accorded to the attorney-general to determine not to initiate criminal proceedings cannot protect the latter if he is found to have abused that discretion in order to protect criminals, an Amanah lawmaker said today.

Hanipa Maidin said that while the discretion to decide on criminal charges was accorded to attorney-generals in the constitution, there was no such thing as "absolute discretion", especially if discretion was misused.

"Yes, it's true that under Article 145(3) of the Federal Constitution, an attorney-general has the discretion to prosecute or not anyone for a crime. However, as stated by the late Raja Azlan Shah J in the Sri Lempah Enterprise case, there exists no absolute discretion, as 'absolute discretion is a contradiction in terms'.

"Besides, if that discretion is seen as being intentionally misused to protect a criminal that has clearly committed a crime, I don't think that discretion can protect even the attorney-general," he said in a statement today.

Clause 3 of Article 145 states that 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.

Hanipa, who is Sepang MP, was commenting on the question if the "attorney-general during BN's era" could face legal ramification for stating that former prime minister Najib Abdul Razak committed no crime in the case involving the transfer of RM42 million from SRC international to the former prime minister's account.

Although he did not name him in the statement, Hanipa is believed to have been referring to attorney-general Mohamed Apandi Ali, who has come under fire for his decision not to initiate any criminal proceedings against Najib in the contentious 1MDB case.

Hanipa opined that the attorney-general could be in significant trouble should a new attorney-general later decide otherwise.

"There is the issue if he (AG) should be charged, I do not wish to speculate. However, if assuming the new attorney-general later decides to prosecute the former prime minister in court for the case (on the) transfer of RM42 million, I feel there is a high probability the attorney-general faces the high risk of being charged with a crime.

"Even so, I do not wish to speculate. Let's wait together for the actions of the new attorney-general," he said.

Former chief justice Zaki Azmi had stated in 2016 that the attorney-general's decision was not open for judicial review. However, he had also stated that no power can be absolute "in the sense that its recipient was free to abuse his position, act mala fide (in bad faith) or with bias."

Meanwhile, with regards to calls by several Pakatan Harapan leaders for Apandi to step down, Hanipa said he agreed the latter should do so before he is fired.

New Communications and Multimedia Minister Gobind Singh Deo had said that Apandi's position had become untenable, while Prime Minister Dr Mahathir Mohamad stated the country had no attorney-general for the time being.

Other DAP lawmakers have also called for Apandi’s resignation, including Iskandar Puteri MP Lim Kit Siang and Bukit Gelugor MP Ramkarpal Singh. -Mkini