Ex-law minister seeks to review AG's decision not to prosecute PM

Former minister Zaid Ibrahim is seeking a judicial review on attorney-general Mohamed Apandi Ali's decision not to prosecute against Prime Minister Najib Abdul Razak.

In a media statement issued after the application for relief to the Kuala Lumpur high court was filed, he claimed that there is strong evidence to suggest wrongdoing.

"I applied to the high court for relief, by way of judicial review, on the following matters:

"The decision of the attorney-general not to prosecute Najib under the appropriate provisions of the Penal Code and the Malaysian Anti-Corruption Commission Act 2009; and

"The decision of the attorney-general directing the Malaysian Anti-Corruption Commission (MACC) to close its files on the investigation into offences possibly committed by Najib," he said.

Zaid said the substantive grounds of his application are that the decision of the attorney-general was unreasonable and constituted an improper exercise of discretion.

The attorney-general, he pointed out, is under a constitutional duty to exercise the discretion conferred on him by the provisions of Article 145 (3) of the Federal Constitution with due consideration, reasonably in public interest and with a sense of justice.

"I am also satisfied - based on reports and statements published by the MACC and other agencies investigating the financial affairs of 1MDB and SRC International - that there is strong evidence of wrongdoing on the part of Najib which indicate possible offences under the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 and the Financial Services Act 2013, which may also extend to criminal breach of trust and other offences under the Penal Code," he added.

No such thing as absolute discretion

The former law minister explained that he was forced to initiate these proceedings due to concern.

"I am rightfully concerned about the dire consequences to the rule of law in this country if the decision of one man cannot be questioned regardless of the facts and circumstances of the case.

"As far as I have been advised, there is nothing known in law as the concept of 'absolute discretion'. The notion of such unfettered discretion is in fact contrary to the rule of law, and it is for this reason I am compelled to act," he said.

Zaid also said if the court granted him the relief he sought, he wanted the court to do three things, which were:

- Make an order in the nature of Certiorari setting aside the decision of the AG not to prosecute and the order he made to the MACC to close their investigations.

- Make a further order in the nature of Mandamus compelling the AG to utilise his discretion under Article 145(3) to properly consider instituting criminal proceedings against Najib.

- Declare that the decision of the attorney-general compelling the MACC to close its investigations is ultra vires his power under Article 145 (3) of the Federal Constitution.

Last Tuesday, the AG cleared the prime minister of any wrongdoing, stating that the MACC investigations into the cases of the RM2.6 billion donation and SRC International's RM42 million deposited into Najib's private accounts did not find any evidence of corrupt practice.

However, Malaysiakini quoted sources familiar with the investigations as claiming that MACC recommended three charges under Section 403 of the Penal Code.

Najib has denied abusing public funds for personal gain and blamed such allegations on those plotting to topple him from power.

Contacted for comment, Apandi said his office has yet to be served with the application.

"As such, I cannot give any comments.

"Suffice to say that once we receive the papers, the AGC (attorney-general's chambers) will respond accordingly as per the law and procedure," he told Malaysiakini in a text message. -Mkini