In December 2019, Rafizi Ramli, the current economy minister, then just “another politician”, criticised the then attorney-general Tommy Thomas after the Attorney-General’s Chambers’ (AGC) officers challenged the decision to acquit and discharge him and bank clerk Johari Mohamad over the Banking and Financial Institutions Act (Bafia) charges.
In an immediate response, Thomas told Malaysiakini: “I was not aware that the appeal was filed. I did not instruct my officers to appeal this case. This is clear disobedience. I will initiate disciplinary action against those responsible.”
The appeal was subsequently rescinded.
Two days later, his predecessor weighed in with a statement saying that the AGC almost always notified the court that they would appeal after losing a criminal trial.
“This is done based on the long practice of the prosecution in this country to be 99 percent sure it can secure a conviction before proffering a criminal charge,” former attorney-general Mohd Apandi Ali said in a statement.
He said the process was “almost automatic” since the time Abu Talib Othman was attorney-general (1980-1993).
The filing of a notice for appeal, he said, would be done even before the grounds of judgment are provided.
The 1MDB foul-up
The AGC over the years has filed hundreds if not thousands of criminal appeals. So, how come there was a boo-boo in the appeal against the acquittal of former prime minister Najib Abdul Razak and former 1MDB CEO Arul Kanda Kandasamy?
Najib’s legal team has contended that the prosecution’s appeal in the 1MDB audit case against the former prime minister is defective.
This is because prosecutors have not filed a petition of appeal in the case. Lawyers for Najib and Arul Kanda confirmed that the prosecution has yet to file the petition of appeal, following prosecutors filing the notice of appeal on March 9.
On March 3, the Kuala Lumpur High Court acquitted the duo of abuse of power involving the audit of the sovereign wealth fund.
Previously, the AGC had used the same “out of time” clause in the Rules of Court of Appeal.
Last April, the appeal of former Jasin parliamentary constituency coordinator Khairuddin Abu Hassan to reinstate his legal action over Muhyiddin Yassin’s decision to advise the Yang di-Pertuan Agong on the emergency proclamation to contain the Covid-19 pandemic was struck out by the Court of Appeal.
This followed its ruling that Khairuddin’s appeal was incompetent as he failed to serve a notice of appeal to the AGC within the time period of 30 days from the High Court’s order as specified in Rule 6 read with Rule 12 of the Rules of the Court of Appeal 1994.
The court held that Khairuddin did not file any application for time to be extended to regularise the delay in serving the notice of appeal, therefore there were no materials for the court to exercise its discretion to allow the notice of appeal to be served out of the time limit.
So, in the case of Najib and Arul Kanda, what went wrong, and who is responsible?
If they could argue successfully against Khairuddin, should lawyers representing Najib and Arul Kanda not be given the same latitude?
Was this an oversight, incompetence, or deliberate action as the nation debates the outcome of the flaws in these fundamental requirements?
‘Damning evidence’
Going by what Apandi said, we can draw similarities in what Sherlock Holmes told his associate: “Elementary, my dear Mr Watson.”
As one lawyer put it: “It’s just like putting on your trousers before heading out of the house. It is routine in the AGC.”
For the layperson, it is a disappointment that the AGC has let them down in ensuring that all avenues for prosecuting alleged wrongdoers are explored.
It does not help its image that fresh in the minds of many Malaysians is former Bank Negara Malaysia governor Zeti Akhtar Aziz testifying that Apandi refused to prosecute errant 1MDB officials eight years ago.
In the ongoing trial of Najib on the 1MDB case, Zeti confirmed that on Aug 13, 2015, Bank Negara submitted an investigation paper (IP) to the AGC with a recommendation to initiate criminal prosecution and to charge 1MDB, including the fund’s senior officers.
She said the entity and its officers were found to have contravened the Exchange Control Act 1953 for furnishing false information to Bank Negara in the 1MDB application for permission to make payments outside Malaysia.
“Despite all the damning evidence gathered and recorded by Bank Negara in the IP (on 1MDB) which was submitted, the then AGC (led by Apandi), for unknown reasons, had on Sept 11, 2015, decided that the IP submitted by Bank Negara was to be classified as no further action (NFA),” Zeti testified.
As damning as it can be, there has been nothing but taciturn and reticent silence. And nothing has come from the AGC itself.
Answers must be provided immediately
Attorney-General Idrus Harun has yet to respond to what transpired at the Court of Appeal. He is said to be on leave prior to the end of his contract.
It was reported that Solicitor-General Terrirudin Mohd Salleh has taken up Idrus’ role in the latter’s absence, in accordance with the law. He too has not commented.
What happened to Minister in the Prime Minister’s Department (Law and Institutional Reform) Azalina Othman Said whose vociferous voice is often heard on matters related to law and the justice system? Has she too joined the long list of people who believe silence is the best option because Malaysians have short memories?
Because the appeal process has been described as “almost automatic”, this writer joins other right-thinking Malaysians in demanding answers or some explanation on how there were lapses in the everyday affairs at the AGC. And that they be provided immediately. - Mkini
R NADESWARAN is a veteran journalist who writes on bread-and-butter issues. Comments: citizen.nades22@gmail.com.
The views expressed here are those of the author/contributor and do not necessarily represent the views of MMKtT.
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