THE Attorney-General’s Chamber’s (AGC) lack of clarity over its decisions in several high profile cases is leading to negative speculations, legal experts say.

Commenting on the AGC’s decision to drop charges against oil and gas provider Serba Dinamik and an out-of-court settlement with former attorney-general Mohamed Apandi Ali, they said the AGC owes the public an explanation on how and why it decided to do what it did.

Senior lawyer Alex De Silva said while the AGC has a discretion of whether or not to pursue charges, it must be circumspect in its decision.

“It would seem as if the Security Commission (SC) authority is being undermined (by the AGC by not prosecuting),” De Silva said.

“The very reason why we have SC, to regulate and oversee listed companies and their functions.

“If the SC’s power appears to be questioned, it sends the wrong signals.”

De Silva said it is not unusual for the AGC to drop charges and impose fines, as seen in the case of Goldman Sachs, but there is still a need for it to clarify its decisions.

“There must be some form of clarification by AGC, although it is not required (by law to do so). They ought to clarify why the decision was made.

“The resignation of the SC’s executive chairman and senior members doesn’t help,” he said.

In December, SC pressed charges against Serba Dinamik directors and officers for submitting false information to Bursa Malaysia, an offence under section 369(a)(B) of the Capital Markets and Services Act 2007, which carries a jail term of up to 10 years and fine of up to RM3 million upon conviction.

It also secured a warrant for the arrest of company chief executive officer and group managing director Mohd Abdul Karim Abdullah.

However, earlier this month, each accused saw their criminal charges substituted for a RM3 million compound.

This comes after the public prosecutor accepted Serba Dinamik and the accused individuals’ representation to the AGC.

Yesterday, the Malaysian Bar said it is concerned over the lack of transparency in the Serba Dinamik decision and the AGCs decision to overrule the SC’s recommendations.

DAP deputy chairman Gobind Singh Deo said the AGC’s decision in Serba Dinamik is causing concern among corporate and capital market players who expect regulatory bodies to play their roles effectively to ensure the credibility of corporate governance and capital market development in Malaysia.

The Puchong MP added that the AGC can no longer stay silent on the matter.

Senior lawyer Mohamed Haniff Khatri Abdulla said the AGC has a moral duty to clarify why certain decisions and actions were taken.

“Let the public know to avoid negative presumptions to the detriment of the AGC’s good name,” he said.

“In matters of public interest, the AGC cannot keep quiet. It cannot say its job is to just look at the investigation paper and make decisions (based on that).

“It is the keeper of rule of law. It is its duty to explain in an accurate, detailed and proper manner (its decision) to cover all angles.”

Lawyer Lim Wei Jiet meanwhile said that the AGC is merely adding on to its track record of dropping charges against the rich and powerful.

“There is a trend already by the AGC. It really needs to explain why such decisions are made.

“Why do these people escape the full force of the law, which includes imprisonment, while those who steal Milo cans in 7Eleven need to spend seven days in jail?

“Why is there a disparity? Why is there one rule for the rich and one for the poor?” Lim asked.

Use of taxpayer money must be made public

With regard to Apandi, the lawyers also agreed that the terms of the settlement must be made public if it involved monetary compensation.

Apandi had filed the suit in September 2020, seeking a declaration that the termination of his services as attorney-general in 2018 by former prime minister Dr Mahathir Mohamad was unlawful.

He asked for RM2,233,599.36 in special, punitive and general damages, to be assessed by the court.

However, on April 13, Apandi’s counsel Baljit Singh Sidhu said Putrajaya had reached an amicable settlement on the former’s lawsuit over his termination in 2018. 

Questions have been raised by Dr Mahathir over the decision to settle and the secrecy around the settlement agreement.

De Silva said the Apandi case is also a matter of lack of clarity on the AGC’s part, especially on whether taxpayer money was involved.

“We don’t know if there was payment made by the government to Malaysia. If there was payment, we all need to know as taxpayers. But even if there was no compensation, we need to know,” he said.

“That is why Dr Mahathir’s comments were valid. As far as he was concerned, he was right to terminate the contract.

“This (the AGC’s decision) leads to speculation. We don’t know what the terms were.

“There needs to be clarity on what happened and why, instead of leaving everything up in the air.”

Haniff Khatri meanwhile rubbished the AGC’s claims that the settlement cannot be made public.

“It is a claim by an ex-public officer against the government. If there is monetary compensation it comes from the treasury, taxpayers’ money.

“They cannot hide behind concealment. That is why the AGC must always remember if things are done properly, the politicians will also know they cannot belittle the institution.

“One small step will go far in the protection of rule of law,” he said.

Lim added that there is no need to disclose the entire settlement agreement, but parts that involve public funds have to be.

“Maybe not all, but insofar as taxpayer money is involved, (the AGC) need to disclose (the information) and we have a right to know,” he said. – May 8, 2022.