A former Anti-Corruption Agency (ACA) director opined that attorney-general (AG) Mohamed Apandi Ali, who is also the public prosecutor, can be investigated under Section 212 of the Penal Code which relates to the crime of harbouring an offender.
Alternatively, Mohamad Ramli Manan told Malaysiakini that investigations can also be carried out under Section 217 or 218 of the Penal Code with regard to a public servant disobeying a direction of law with the intent to save a person from punishment or property forfeiture.
Mohamad Ramli (photo) is the latest to lend his voice to the chorus of protests surrounding Apandi's directive to the Malaysian Anti-Corruption Commission (MACC), the agency which replaces the ACA, to close its files on Prime Minister Najib Abdul Razak and for allegedly refusing MACC's request to conduct further investigations under the Mutual Legal Assistance (MLA).
The MLA allows local authorities to seek assistance from their foreign counterparts.
Mohamad Ramli pointed out that now, when the Swiss attorney-general has formally requested for assistance from Malaysia regarding its 1MDB probe, Apandi is cooperative.
"It would have made the investigation easier to complete for the MACC if the MLA was allowed, with the Swiss authorities cooperating," he said in an email interview.
To a question on who should investigate Apandi, he said it could be done by the police and the MACC.
If done by the MACC, he proposed that investigations be carried out under Section 17 of the MACC Act for an offence of giving and accepting gratification by an agent and also Section 212 of the Penal Code.
Mohamad Ramli, who is a qualified lawyer, said based on Apandi's statements during his press conference, it appears that the prime minister might have committed an offence under Section 165 of the Penal Code with regard to the RM2.6billion 'donation'.
"Under our law, making good any money that was received or misappropriated doesn't make the offence any lesser but goes to mitigating, if any.
"That section says any public officer who had received a valuable thing, even without consideration, from anyone who has official dealing with him or in this case with the Malaysian government, is guilty of the offence," he added.
Therefore, the former ACA director said since Apandi had cleared Najib, the AG could be investigated under the three sections mentioned earlier.
Controversial appointment
Mohamad Ramli also noted that Apandi's appointment as AG was made under controversial circumstances, and had raised the widespread speculation as to its intent and purpose since there was no evidence that Abdul Gani Patail was deemed unfit to hold office.
"What Apandi did is totally wrong. He should not have gotten personally involved in scrutinising the investigation papers and making any decision because there is blatant act of conflict of interest which borders on criminality," he said.
He added when the investigation papers were submitted to the AG's Chambers, Apandi should have delegated the task of scrutinising the papers either to the solicitor-general or to others, such as the chambers' head of the prosecution division.
Although there is a directive by the AG's Chambers that sensitive cases involving ministers should be submitted to them, Mohamad Ramli said what transpires is that the investigation papers would first be studied by the senior DPP, and this person would send it to the AG's Chambers or through the MACC chief commissioner.
"Once received by the AG's office, it does not necessarily mean that the AG has to personally scrutinise the investigation papers. The papers could be scrutinised by his head of the prosecution division, who is a very experienced officer in criminal cases.
"In this case, it is highly unethical and unprofessional for Apandi himself to scrutinise the investigation papers and pronounce Najib's innocence since he was appointed to the post on Najib's recommendation soon after the contentious sacking of Abdul Gani," he said.
Apandi was appointed last July after his predecessor was removed on health grounds, several weeks after the Wall Street Journal and whistleblower website Sarawak Report exposed the RM2.6 billion and SRC International's RM42 million transferred into the prime minister's private accounts based on leaked documents from Malaysian investigators.
At the time, Abdul Gani was heading a joint taskforce investigating 1MDB and issues connected to the firm.
The Najib administration has refuted allegations of a cover-up, while the prime minister has denied abusing public funds for personal gain, and blamed such claims on those conspiring to topple him.
Meanwhile, Mohamad Ramli said the AG, who is also the public prosecutor, has no power either under the Federal Constitution or the Criminal Procedure Code to order the MACC to stop investigations or to close the case.
"That is tantamount to a criminal act of trying to prevent the investigating authorities from getting evidences to prove that a crime was committed.
"Such orders or directives could be ignored by the investigating officer. It is also the practice in the then ACA or the MACC now that any paper which has been closed can be reopened for investigation if new leads are obtained. There is no such thing as a complete closure," he added. -Mkini
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