THE attorney-general or public prosecutor has the discretion to determine the direction of criminal proceedings, the Malaysian Bar said in reference to the contentious deal between the government and Riza Aziz, stepson of former prime minister Najib Razak.
President of the Malaysian Bar Salim Bashir said there are provisions under the law for such a deal, which he described as still being in “its early stages of settlement”.
“The factors that ought to be taken into account must be dictated by wisdom, relevant consideration and driven by facts and public interest,” he said in a statement today.
“Therefore, it can be said that the case concerning Riza Aziz is still very much in its early stages of settlement, as he is still expected to fulfil all the agreed terms and conditions.
“In the event of his failure to do so, he may be re-charged and prosecuted for the same offences.”
Riza was charged with five counts of receiving proceeds of unlawful activity totalling US$248 million (RM1.08 billion) linked to 1Malaysia Development Bhd (1MDB) between April 2011 and November 2012.
He faced up to five years in prison and a fine of up to RM5 million.
However, the government struck a deal to drop charges against Riza in return for recovering overseas assets linked to 1MDB and estimated at US$107 million.
As part of the agreement, Azman Ahmad, presiding judge in the case at Kuala Lumpur Sessions Court, on May 14 allowed an application by the prosecution for a discharge not amounting to acquittal (DNAA) for Riza.
“It is the attorney-general that acts as public prosecutor by virtue of Article 145(3) of the federal constitution, and this power is executed by the solicitor-general, and deputy public prosecutors (DPPs) in criminal trials by virtue of Section 376 of the Criminal Procedure Code (CPC),” Salim said.
“These provisions give the public prosecutor the ultimate discretion to determine the direction of criminal proceedings, among other things.”
He added Attorney-General Idrus Harun laid down in his press release the charges and the process that set this chain of events in motion, right from the first representation made by Riza’s lawyers until the agreement was reached.
“On the face of it, these events seem to be in consonance with the law, as Section 92 of the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 (AMLA) allows for offences to be compounded by authorities with the consent of the public prosecutor,” he said.
He added that the decision to apply for a DNAA lies with the attorney-general or public prosecutor, who has the power to decline further prosecution at any stage of the trial under Section 254 of the CPC.
He said this power, which is exercisable by the attorney-general or public prosecutor, is similar to the power to stay proceedings in English courts.
This is known as the power to enter a ‘nolle prosequi’, which is an order that directs the discharge of an accused person without acquitting him.
The deal between the government and Riza also sparked a controversy after Idrus said his predecessor Tommy Thomas had agreed to it in principle.
Idrus said Riza made several representations to the Attorney-General’s Chambers through his solicitors, Messrs Scivetti & Associates, for the charges against him to be dropped in return for properties and money the AGC was chasing from him.
“I have been advised that my predecessor Tommy Thomas, after perusing the said letter of representation, via a minute dated November 19 to senior deputy public prosecutor Gopal Sri Ram, sought the views of the latter, and further said that in light of the proposals outlined above, he is prepared to consider the representation.
“I have been further advised that Gopal Sri Ram, in consultation with the then-Malaysian Anti-Corruption Commission chief Latheefa Koya, suggested the proposals laid down in the letter of representation be accepted by the MACC.
“I have also been advised that Thomas had agreed to the suggestion in principle. This paved the way for further negotiations and planning of the mechanism to be adopted, to take place,” Idrus, who is also the public prosecutor, said in a statement.
However, Thomas had said he would never sanction the deal.
The former attorney-general said it would have betrayed the trust the prime minister and the former Pakatan Harapan government had put in him if he had allowed the deal.
“Since Idrus is at pains to emphasise the weight he gave to my so-called ‘agreement in principle’, which itself is a fiction, let me state publicly that I would have never sanctioned this deal.
“I would have lost all credibility in the eyes of the people of Malaysia, whom I endeavoured to serve as public prosecutor to the best of my ability, honestly and professionally, if I had approved it,” he said in a statement earlier today. – May 18, 2020.
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