I REFER to the recent call by the Pakatan Harapan presidential council for Attorney-General Idrus Harun to resign for his decision to withdraw the appeal against former Umno minister Tengku Adnan Tengku Mansor’s acquittal in his corruption trial.

I also refer to the recent article by Surenda Anath (a member of the Malaysian Bar) published on November 22, 2021, in Malaysiakini.

His article and the article by Bar president A.G. Kalidas are excellent examples of how politicised some people in the Bar have become.

Surenda’s article attempts to discredit an article by Muhammad Shafee Abdullah published in The Star, that quite rightly exposes Kalidas’s political bias in his criticism of the decision by Idrus to withdraw the notice of appeal, following the acquittal of Tengku Adnan (Criminal Trial No: WA-45-1-01/2019).

The presidential council, Kalidas and Surenda should be familiar with the matters that Idrus must take into account when deciding whether to exercise his discretion, granted to him in Article 145 of the Federal Constitution and subsection 376(1) of the Criminal Procedure Code.

What must be remembered is that, while Idrus does indeed have wide ranging discretionary powers, these powers must never be used flippantly without careful consideration of the factors that must be assessed.

The factors that must be considered are, inter alia, the following:

• The strength of case;
• Public interest;
• Relevant decisions; and as a result
• The likelihood of success.

This is basic law. In exercising his discretion, the AG must not do so in ignorance or in spite of some or all of these factors.

I am certain the AG weighed them all up in forming the decision to withdraw the notice of appeal.

The most significant factor in this matter were the decisions.

Tengku Adnan was charged and convicted at Kuala Lumpur High Court, principally on grounds that the money paid to him was not a political donation.

However, this conviction was overturned, and in the Matter of the High Court of Malaya at Kuala Lumpur, Criminal Trial No: WA-45-1-01/2019, the majority of the appeal court bench was of the view that:

• There was a non-direction and misdirection by the trial judge on the law and evidence;
• Tengku Adnan should have been discharged and acquitted.

Accordingly in the circumstances, the court intervened and quashed the conviction handed down by the high court.

In setting aside the conviction, the appeals court held that the money paid was indeed for a political contribution, and as such there was no offence committed.

The laws of Malaysia are clear on this point: it is not illegal to receive funds for political contributions.

In this regard, Malaysia is very different from other countries, where it may be an offence to receive contributions in excess of a set value. The most well-known example of this is the US.

However, the laws of Malaysia must be applied in this matter. In Malaysia, there is no such offence for receiving contributions for political purposes of any size.

The presidential council, Kalidas and Anath surely must know this to be the case – they cannot be ignorant of this.

As the majority of the Court of Appeal held that no offence was committed, it is then a matter of public interest that the AG not persist in what could then be seen to be a vexatious prosecution of an innocent party.

Persisting then makes the likelihood of success of any further prosecution very low. Once the evidence that the money provided was a political contribution is accepted, no offence has been committed.

It is important that the public at large recognise that the system is designed to protect the innocent as well as hold accountable the guilty.

The hearings held to date show that there is an innocent party that should not be subjected to further prosecution. It is neither lawful nor morally correct to continue to do so.

In full awareness of this, the presidential council and Kalidas chose to issue statement/publish his article questioning the decision, stating that the AG must provide reasons for the exercising of his discretion.

Added to which, Surenda chose to publish his article criticising Shafee. Anath alleged that questioning the AG’s decision was pursuant to the following:

1. The high court found Tengku Adnan guilty;

2. The decision of the Court of Appeal was not unanimous and there was a dissenting judgment; and

3. The case concerns acts carried out by Tengku Adnan, while he was holding an important public office.

All of these points are simply laughable, in that:

1. The high court decision was exactly what was set aside by the Court of Appeal;

2. The decision of the Court of Appeal was a majority decision – it is irrelevant that there was a dissenting opinion – the simple fact is that the high court decision was set aside, with grounds provided. The dissenting opinion provided no reasonable grounds that factored in the accepted evidence;

3. The fact that the case concerned acts by Tengku Adnan while he was holding an important public office is precisely why there was no offence committed and the decision was set aside.

This is particularly pertinent, given that the prosecutor even stated that the funds provided were a political contribution, and this was established in the evidence provided.

Clearly, where the Court of Appeal has set aside a conviction – due to the fact that the evidence makes clear that the funds were a political contribution and therefore no offence was committed – the AG must take this into consideration and any sane person would see that any subsequent persistence in prosecution would be highly suspect.

In spite of this, Kalidas and Surenda persist in writing these articles, and the presidential council is calling for the AG’s resignation.

As a matter of fact, it is not for the AG to resign for carrying out his constitutional duties, but for those calling for his resignation with their own ulterior motives to assess their own position accordingly – less said is better.

Given all of this, what other conclusion can be drawn than they are all politically motivated? – November 23, 2021.

* Wolfgang Schulz reads The Malaysian Insight.

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.