Attorney-general Mohamed Apandi Ali had acted more like Najib Abdul Razak's 'de facto defence counsel' based on the way the prime minister was cleared over corruption investigation, lawyer Mohd Haniff Khatri Abdulla told the High Court in Kuala Lumpur today.
"He (Apandi) had exceeded his jurisdiction as the purported 'attorney-general' when he acted as Najib's de facto defence counsel by raising possible defences for and on his behalf," he said in a written submission, referring to the RM2.6 billion donation deposited into Najib's private bank accounts.
Haniff said this at a hearing on leave application for judicial review by former Batu Kawan Umno vice-chief Khairuddin Abu Hassan to challenge Apandi's decision for not prosecuting Najib.
"As soon as there was evidence that the gratification had been accepted and received by Najib, a prima facie case of corruption was established (enough) to institute charges under the MACC Act, 2009.
"If indeed a certain sum had been returned by Najib, then it is for Najib to raise the same in his defence, and not for Apandi to raise the defence on Najib's behalf," he added.
On Jan 26, the day Apandi cleared Najib of corruption, the attorney-general had acknowledged in his own statement that money was deposited into Najib's private bank accounts but he later returned a portion of it to the Saudi royal family, noted Haniff.
He submitted that Apandi's legal responsibility was only to consider if there was enough evidence to charge Najib.
Haniff (photo) said the public prosecutor failed to consider his own statement before arriving at his decision to clear the prime minister.
It also triggered the legal necessity for the Attorney-General's Chambers to issue a request for a mutual legal assistance, which would allow investigation on financial institutions in foreign jurisdiction, he added.
"He (Apandi) is clearly seen to be partial, favouring Najib," he said, adding that the AG had instructed to close the probe after the money was returned.
"(He decided) that there is no necessity for Malaysia to make a request for a mutual legal assistance to any foreign states for the purpose of completing the criminal investigation by the MACC (Malaysian Anti-Corruption Commission)."
Apandi's decision was tainted with unreasonableness and illegalities for having exceeded his jurisdiction, he added.
"This ground alone would warrant that leave for judicial review be allowed by the court," Haniff submitted before Justice Hanipah Farikullah.
AG's discretion cannot be questioned
In his written submission, senior federal counsel Amarjeet Singh said the exercise of discretion by the attorney-general cannot be questioned in the court of law, by way of certiorari, declaration or other judicial review proceedings.
"It is settled law that the AG's decision not to institute criminal proceeding under Article 145(3) of the Federal Constitution is not amenable to judicial review or not justiciable.
"The challenge in respect of the instruction to close the file is frivolous as the instruction does not prohibit the MACC from reopening investigation on new evidence," he added.
He also pointed out that Khairuddin has no locus standi (legal standing) in filing the judicial review application.
Also present were senior federal counsel Alice Loke, Suzana Atan, Awang Armadajaya Awang Mahmud and Shamsul Bolhassan.
The court will first set a new date for case management and will fix another date for decision.
When met outside the courtroom, Haniff said: "(The decision date) most probably will be (fixed) after the third hearing of the judicial review (applications) against the same decision made by Apandi."
Apart from Khairuddin, former de facto law minister Zaid Ibrahim and the Malaysian Bar have also filed separate actions against Apandi for his decision to clear the premier.
The same court will hear the leave application brought by the Malaysian Bar on Aug 25.
Khairuddin filed the application for judicial review on Feb 3 to quash Apandi's decision to clear Najib.
Khairuddin also filed the United States Department of Justice (DOJ) lawsuit documents in support of his application.
It was reported that Khairuddin had filed reports in Hong Kong, Singapore, Switzerland, France and the United Kingdom. However, he was arrested just before leaving for the US to lodge another report there.
Khairuddin is facing a charge of disrupting financial institutions following the reports he lodged against 1MDB in those countries. - Mkini
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