The Malaysian Bar has commenced legal action in the High Court to seek a judicial review of the decisions of the attorney general of 26 January 2016, made under Article 145(3) of the Federal Constitution, says Steven Thiru.
The attorney general had decided that no criminal offence has been committed by the prime minister in respect of the three investigation papers submitted by the Malaysian Anti-Corruption Commission.
The investigation papers are reportedly in relation to the transfers of the “MYR2.6 billion donation” and funds from SRC International Sdn Bhd into the personal bank accounts of the prime minister.
The attorney general has also instructed the MACC to close the three investigation papers.
The Malaysian Bar is of the view that the discretionary prosecutorial powers conferred on the attorney general by Article 145(3) of the Federal Constitution are not absolute or unfettered, and the exercise of these powers can be challenged in a judicial review action.
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The scope and ambit of the discretionary prosecutorial powers and whether these powers were exercised in accordance to law on the facts of any given case should be determined by the courts.
This matter is of critical public interest. There should be no usurpation of the judicial powers of the courts, as it is for the courts — and not the attorney general — to decide on the innocence or guilt of a suspect in respect of any alleged crime.
The independence of the MACC in discharging its statutory duties under the MACC Act 2009 as an investigative and enforcement agency, must be protected, and any impediment to the performance of these duties must be prevented.
This matter involves serious allegations of financial impropriety, including allegations of loss of public funds, and has dire implications on the administration of justice. It must therefore be resolved in a manner consistent with the principles of the rule of law.
Steven Thiru is president of the Malaysian Bar.