Legisperitis cum non malitia

The rogue lawyers within Bar Council who tried to run Attorney General Tan Sri Apandi Ali down at their AGM on Saturday, in their effort to realise the Oppositions’ strategy to topple Prime Minister Dato’ Sri Mohd. Najib Tun Razak’s leadership, failed when it is interpreted that decision on criminal cases made by the Public Prosecutor is not opened for Judicial Review.

The Star story:

Monday, 21 March 2016 | MYT 9:51 PM

A-G’s decision to prosecute not subject to judicial review, says former top judge

KUALA LUMPUR: Case law states that the power of the Attorney-General over criminal matters and his decision whether or not to prosecute is not open to judicial review, says former Chief Justice Tun Zaki Tun Azmi (pic).

He cited two cases where two former Lord Presidents – Tun Mohamed Suffian Hashim and Tun Mohamad Salleh Abbas – affirmed that the Federal Constitution is clear about the A-G’s powers.

“Tun Suffian’s learned decision in Long Samat v Public Prosecutor in 1974 provides a nice backdrop to the controversy raging today about the nature of the Attorney-General’s prosecutorial powers.

“Courts cannot compel (the A-G) to institute any criminal proceedings which he does not wish to institute or to go on with any criminal proceedings which he has decided to discontinue,” he said.

In a similar vein, Zaki said Tun Salleh Abas in PP v Zainuddin in 1986 stated that the Constitution gave the A-G “an exclusive power respecting direction and control over criminal matters” and “his decision is not open to any judicial review”.

Zaki also said that any resolution by an NGO to call for the A-G’s forced resignation had no effect whatsoever in law because he was appointed by the Yang di-Pertuan Agong on the advice of the Prime Minister under Article 145(1) of the Constitution and he holds office at the pleasure of the King.

The A-G’s powers over prosecution, he said, were prescribed by Section 376 of the Criminal Procedure Code and under Article 145(3) of the Federal Constitution.

“Under Article 145(3), 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,” Zaki said.

However, the former Chief Justice said, it was not within the A-G’s power to order investigative agencies to discontinue their investigations or close their files.

“They remain free under their parent law to do their work diligently and independently, to close or reopen their files and to submit and re-submit their findings to the AG for his prosecutorial decision,” he said.

Zaki, however, believed that in a Constitutional democracy, no power can be absolute or unfettered in the sense that its recipient was free to abuse his position, act mala fide (in bad faith) or with bias.

“Public office is a public trust. All public powers must be exercised in good faith, in a neutral, detached manner, in accordance with the existing law and with the public interest in mind.

“Words such as ‘absolute’ and ‘unfettered’ to describe the power of a constitutional agency are anachronistic and must be discouraged,” he said.

Zaki asserted that abuse of power is not condoned by the Constitution, but it must also be made known that not every issue of state is required automatically to end up in the lap of the judiciary.

Constitutional and administrative law has always recognised some clear limits on what is subject to judicial scrutiny, he said.

Zaki however stressed that although a decision was non-reviewable in a court it did not imply that the authority concerned was above the law and was free to act arbitrarily.

“It simply means that the decision is unsuitable for judicial scrutiny.

“Other, more adequate, alternative remedies may exist, for example a parliamentary inquest during question time, an electoral censure during elections or an enquiry by a Royal Commission,” he said.

Zaki said that in criminal cases, whether credible evidence exists or whether the evidence is adequate to mount a case and whether the evidence is rebuttable in reply are questions for the A-Gs discretion.

“He determines ‘all important questions of policy … and the attitude to be adopted by the prosecution towards material objections raised or demands made by the accused with respect to the evidence,” he said, alluding to the case of PP v Datuk Harun Idris in 1976.

Zaki said that in Malaysia courts could not order a prosecution on their own initiative or on a complaint from a citizen. – Bernama

*************

The Bar Council on Saturday won by a slim majority to call for AG Amanda’s resignation.

Channel News Asia story:

Malaysian lawyers call for Attorney-General’s resignation

Many lawyers believe there was a conflict of interest when Attorney-General Apandi Ali ordered the Malaysian Anti-Corruption Commission to cease corruption investigations into Prime Minister Najib Razak.

By Sumisha Naidu, Malaysia Correspondent, Channel NewsAsia
Posted 19 Mar 2016 13:19 Updated 21 Mar 2016 17:44

KUALA LUMPUR: More than 700 Malaysian lawyers have debated and passed a motion calling for Attorney-General Apandi Ali to step down for closing corruption investigations into Prime Minister Najib Razak.

At the Malaysian Bar’s Annual General Meeting (AGM) on Saturday (Mar 19), Mr Apandi, a former judge, was a hot topic.

Many lawyers believe there was a conflict of interest when Mr Apandi ordered the Malaysian Anti-Corruption Commission to cease investigations into the close to US$700 million deposited into Mr Najib’s bank accounts in 2013 as well as SRC international, a former subsidiary of state investment firm 1MDB.

A copy of the resolution shows the Bar calling for his immediate resignation “for the good of Malaysia, to restore public confidence and perception of the rule of law, in particular the administration of criminal justice in Malaysia”.

The Bar wants the Solicitor General to assume the role and responsibilities of Public Prosecutor in the cases involving the Prime Minister, 1MDB, SRC international and the millions deposited in Mr Najib’s accounts “considering the disability of the Attorney General to continue to act as Public Prosecutor for these cases by reason of passed conduct and the existing competing and conflicting roles of the Attorney General”

Last week, the Malaysian Bar also filed an appeal for a judicial review of Mr Apandi’s decisions.

Said Steven Thiru, President of the Malaysian Bar: “It’s coming from the Malaysian Bar which is the sole body that represents the practicing lawyers in peninsular Malaysia, in west Malaysia, so certainly it would have a bearing.”

At the Malaysian Bar AGM, lawyers pushed through resolutions condemning the passage of the National Security Council Bill as well, fearing authorities could abuse the power it confers on them in areas declared by the council as “security zones”.

The Bar also approved a motion calling on the Malaysian government to stop Internet censorship and restore access the media sites that have been blocked recently including The Malaysian Insider.

The site was blocked in Malaysia in February after it published an article quoting a source who alleged the Malaysian Anti-Corruption Commission had enough evidence to charge Mr Najib.

The site has since shut down operations, partly because of losses in advertising revenue as a result of the block.

– CNA/av

****************

Members of the Bar Council viewed the move to call for AG Apandi’s resignation should be as seditious.

The Bar Council was lambasted even by Opposition leaders for calls unbecoming of a legal fraternity, which is defying the Federal Constitution for demanding a Judicial Review on AG Amanda’s decision to not pursuit the incomplete IPs made by MACC against cases which related to Prime Minister Najib.

Pro-Opposition news portal Malaysiakini story:

Malaysian Bar ‘tainted’ by motion at AGM to remove AG

2664
Published 18 Mar 2016, 4:43 pm Updated 18 Mar 2016, 4:50 pm 37 comments

A Penang DAP backbencher said the Malaysian Bar has been “tainted” by its actions against attorney-general (AG) Mohamed Apandi Ali and his decision not to press charges against Prime Minister Najib Razak.

Seri Delima assemblyperson RSN Rayer is referring to the Bar’s plan to table a motion to seek Apandi’s removal at its AGM and the application for judicial review to challenge the AG’s decision not to prefer charges against Najib in relation to the RM2.6 billion donation.

Rayer, who is also a lawyer, said he personally felt the two issues have tainted the position of the Bar as a professional regulatory body for advocates and solicitors in Malaysia into a partisan organisation which is pro-opposition and anti-government.

“The Bar Council is urged to withdraw this action for a judicial review as it will not meet the legal pre-requisites as the Bar Council is not aggrieved by this decision of the attorney-general who decided not to prefer charges against the Prime Minister.

“It seems to me that this action of the (Malaysian) Bar Council has drawn wide criticism as being a busybody and further fuelled speculation that the Bar is now very pro-opposition and anti-government, although I personally do not subscribe to this misconception as I think the Bar still upholds law and justice in this country,” he said in a statement today.

The Malaysian Bar is holding its AGM in Kuala Lumpur tomorrow.

Rayer said Apandi Ali is the Attorney General and Article 145 of the Federal Constitution gives him the power to decide on all matters related to prosecution.

He added that moving a motion to call for his resignation or removal at the Bar AGM may not be the legally correct thing to do.

“It is wrong for the Bar Council to propose and debate a motion calling for the removal of the newly appointed AG when it is legally and constitutionally clear that the appointment of the AG is the prerogative of the Agong on the advice of the Prime Minister.

“I urge the Bar Council to abort debating this motion because the Bar cannot be seen to be doing something for the sake of doing something, although it may not have any legal impact lest we want to be the laughing stock of the entire nation,” he added.

**************

It is not sure whether Bar Council members considered the fact that MACC admitted that they on 31 December 2015 submitted an ‘incomplete’ or more likely defective investigation papers on the so called RM2.6billion donation credited into Prime Minister Najib’s personal account and SRC International.

The confusion created by MACC on the drama on the submission of the defective IPs itself points towards the agency is making political leanings and the conspiracy theory.

AG Apandi has been very stern about carrying out his duties based on the information presented to him, free from any pressure or interference.

This is not the first time Bar Council is deemed political and acting as an extension of the Opposition, in the strategy to demonise the sitting Barisan Nasional Government.

A professional body using 'intellectual discourse' to demonize the Police Force

A professional body using ‘intellectual discourse’ to demonize the Police Force

The Bar Council even tried to deny Sabahans’ and Sarawakians’ prerogative as enshrined under the Federal Constitution pertaining to immigration matters in both states.

The “Thirteen Million Plus Ringgit question” is would the Malaysian public be protected by the legal fraternity behaving as politicians and continuously play or allow itself to be an extension of digressing politics and confuse the general public?

The right to refuse entry and banish, based on provisions in the Immigration Act

The right to refuse entry and banish, based on provisions in the Immigration Act

The Opposition and Opposition friendly NGOs such as the Bar Council is making hue and cry on the Sabah State Government to impose their powers to ban persons ‘Deemed Criminals’ such as PKR Vice President Nurul Izzah Anwar from entering the state.

The Bar Council has been consistently abuse its position as the legal fraternity and make political statements via their interpretation of legal matters, which many times defy decisions made even at Apex Court level.

Chief Justice, Chief Judges and Federal Court Judges are those who went through rigorous selection process which the final assent is made by Council of Rulers and His Majesty Seri Paduka Baganda Yang DiPertuan Agong.

AG Apandi was a serving Federal Court Judge before appointed as Attorney General last July, which received the royal assent.

The statement made by former Chief Justice Tun Zaki Tun Azmi simply ricochet the egg pelted by Bar Council back to their own faces, for their malicious intent to play Oppositions’ politics and ridicule and confuse the Malaysian public.

Published in: on March 21, 2016 at 23:59  Leave a Comment  

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