KUALA LUMPUR, Sept 16 — The Attorney General should suspend applying for a discharge not amounting to an acquittal (DNAA) in high-profile criminal trials such as those involving politicians, electoral reform group Bersih has said.
In its Malaysia Day message released yesterday evening, Bersih said this historic day would be “meaningless without the rule of law and a clean government”.
On the 60th anniversary of Malaysia’s formation, Bersih said independence is always a work in progress as it was not merely about being free from foreign rulers, and as the country can be recolonised internally when its democracy is disabled or externally if the government sells out to foreign powers.
“Hence, independence requires the rule of law, where everyone including the head of government is equal before the law, and a clean government, where public funds cannot be plundered, and power cannot be bought,” the Bersih steering committee said in a statement.
Bersih claimed that Malaysia’s independence was at its lowest point when Tan Sri Abdul Gani Patail was replaced with Tan Sri Mohamed Apandi Ali in 2015 as the Attorney General, and claimed that it returned to its highest point on August 23, 2022 with former prime minister Datuk Seri Najib Razak’s imprisonment following a conviction in the case involving SRC International Sdn Bhd’s RM42 million.
“It sent a clear message to every Malaysian: even Prime Minister is not above the law, commit a crime and you will be punished,” Bersih said.
Bersih expressed support for the proposal to separate the AG’s current dual roles of acting as the government’s legal adviser and as the public prosecutor (PP) who decides on the prosecution of cases.
“We warmly welcome the Law and Institutional Reform Minister Datuk Seri Azalina Othman Said’s announcement of appointing two task forces for cross-national and technical studies on the separation of PP from AG within a year. We think that the separation should be completed within a year, and that should not be delayed on technical or financial ground,” it said.
While waiting for the proposal for the separation of the AG’s and PP’s roles to be processed within a year’s time, Bersih called on the federal government and the AG to give a public assurance on a list of four items, including pausing the seeking of DNAA in high-profile cases.
“A moratorium on application of DNAA on high-profile cases involving politicians, namely Najib’s ongoing and outstanding cases, his wife Rosmah Mansor’s ongoing cases, Lim Guan Eng, Syed Saddiq and any other cases. Let the judiciary determine their guilt or innocence without any interference from the AG or his political master,” Bersih said in listing the first item it wanted a public assurance on, urging for the trials to continue until the end to enable the courts to decide.
Bersih was referring to Najib’s wife Datin Seri Rosmah Mansor, DAP chairman and former Penang chief minister Lim Guan Eng, Malaysian United Democratic Alliance (Muda) president and Muar MP Syed Saddiq Abdul Rahman.
“To recharge Zahid again soonest after new investigation on the case of Yayasan Akalbudi — a charity foundation purportedly for mosques, tahfiz and orphans — which carried 47 charges of corruption, criminal breach of trust (CBT) and money laundering,” it said.
Bersih was referring to the High Court’s granting of a DNAA on September 4 in Deputy Prime Minister Datuk Seri Ahmad Zahid Hamidi’s Yayasan Akalbudi case, after the prosecution decided to discontinue the trial and applied for a DNAA. A DNAA means an accused person can still be charged on the same charges in the future.
Separately, Zahid had a separate trial involving 40 bribery charges where the High Court had on September 23, 2022 acquitted him without requiring him to enter a defence. The prosecution had filed an appeal against the acquittal and the appeal has yet to be heard, with case management scheduled at the Court of Appeal next Monday. Zahid had previously sent a representation letter to ask the Attorney-General’s Chambers (AGC) to discontinue the appeal.
As for the third item, Bersih wants the federal government and the AG “to ensure the AGC’s appeal on Zahid’s Foreign Visa System (VLC) case which carried 40 charges of bribery would not be thrown out conveniently on some technical grounds”.
As for the fourth item, Bersih wants an investigation into the prosecution’s failure to meet the deadline required to continue its appeal against the acquittal of Najib and former 1Malaysia Development Berhad (1MDB) CEO Arul Kanda Kandasamy in a case over the alleged tampering of the auditor-general’s audit report on 1MDB.
Due to the prosecution’s missing of the 10-day deadline and failure to apply for an extension of the deadline as required under the law, the Court of Appeal on September 12 struck out the appeal, which meant Najib and Arul Kanda remain acquitted and free of those charges.
Bersih said “the negligence of the AGC officials responsible must be duly punished”.
Bersih said that the AGC’s credibility has been greatly tarnished by its past decisions to apply for a DNAA or a discharge amounting to an acquittal for many government politicians and officials such as then finance minister Lim and former Sabah chief minister Tan Sri Musa Aman and claimed that prime ministers who endorse such decisions are “endorsing selective impunity”.
Bersih also cautioned against allowing Malaysia to send the message or be at a state where innocence of politicians would depend on whether their political party loses or holds power and letting elections replace the court in deciding justice.
“If Najib was jailed last year because he was out of power but walks free tomorrow because his party is back to power, then the message to Malaysians is loud and clear: “you are innocent until you lose power, and you regain innocence when you regain power.” It will destroy public confidence in our political system and produce political cynicism,” it said when cautioning against such scenarios.
“The implication would be disastrous: any criminal who wants to get away should just win the next general election and change the AG. Such a Malaysia, where innocence hinges on power and election replaces court in deciding justice, would be an international pariah and a prime target for economic colonisation,” it claimed.
“On Malaysia’s 60th birthday, we appeal to the common sense and decency of all political parties and elected representatives to defend our independence by upholding the rule of law and a clean government. We renew our call for an inter-party peace deal to prevent any political blackmails from partners in a coalition government,” it said.
Saying that Najib must remain in jail for his SRC case and be put on trial fairly for his remaining cases, Bersih said “Malaysians must be ready to stand up and be counted on the streets to defend our beloved Malaysia” if this red line is breached.
