Public can challenge A-G’s refusal to charge 1MDB, say lawyers

Bank Negara Malaysia can challenge in court the Attorney- General’s decision to drop investigations into 1MDB, say lawyers. – Reuters file pic, October 10, 2015.

Any member of the public or entity, including Bank Negara Malaysia, can challenge in court the Attorney-General’s decision that 1Malaysia Development Berhad (1MDB) has not committed any offence despite the central bank’s appeal to review the case, lawyers said.

Lawyer Amer Hamzah Arshad said such a challenge had never been mounted in Malaysia but it had been done in other Commonwealth jurisdictions.

“If one thinks that there is bad faith by the A-G’s refusal to prosecute, one could go to the court for remedy,” said the criminal lawyer. 

This legal view comes as the central bank issued a statement yesterday that its probe into 1MDB had found that the state investor made inaccurate or incomplete disclosures to secure permissions for overseas investments.

Bank Negara said it had revoked three permissions granted to 1MDB for investments totalling US$1.83 billion (RM7.53 billion) on that basis.

It had also recommended that the A-G initiate criminal prosecution against 1MDB for breaches under the Exchange Control Act 1953.

Amer said he had come across of incidents where the A-G, who is also the public prosecutor, had finally framed charges against accused persons after investigation agencies appealed for a review.

The lawyer was asked to comment on an announcement by the Attorney-General’s Chamber (AGC) on Thursday that there would be no prosecution despite the central bank requesting a review to the prosecutor’s decision that no further action was required on 1MDB regarding false disclosures.

The AGC said 1MDB officials were investigated under Exchange Control Act, for knowingly and recklessly making a statement which was false.

Bank Negara submitted the investigation papers (IP) to the AGC on August 21. The papers were returned to the central bank on September 11, which replied the AGC on October 1 with a request for a review.

The AGC said it decided to maintain its earlier stand on grounds that no new evidence was available.

Under the Federal Constitution the A-G had discretion to institute, conduct or discontinue any criminal offence.

Bank Negara’s statement yesterday also acknowledged the A-G’s discretion on the matter.

But Amer said a strong inference could be drawn that central bank investigators had sufficient material to build a case.

Lawyer New Sin Yew said it was time to have an independent public prosecutor, separate from the A-G whose role also included being the government’s chief legal adviser.

“The Malaysian Bar and interest groups have been pushing for this because the appointment is made by the Agong on the advice of the prime minister.”

New said only a public prosecutor who was seen impartial and independent would enjoy public confidence.

He also said all enforcement agencies, such as Bank Negara and Malaysian Anti-Corruption Commission must be given prosecutorial powers and independent of the public prosecutor.

“This will promote a check and balance on one and another.”

- TMI