This article first appeared in The Edge Financial Daily, on March 16, 2016.

KUALA LUMPUR: The Malaysian Bar is seeking a judicial review of the attorney-general’s (AG) decision to clear Prime Minister Datuk Seri Najib Razak of wrongdoing in relation to the transfers of the “RM2.6 billion donation” and funds from SRC International Sdn Bhd into his personal accounts.

The Bar said it filed an application in the High Court seeking to set aside Tan Sri Mohamed Apandi Ali’s Jan 26 decisions exonerating the prime minister and instructing the Malaysian Anti-Corruption Commission (MACC) to close its three investigation papers on the matter.

“The Malaysian Bar is of the view that the discretionary prosecutorial powers conferred on the attorney-general by Article 145(3) of the Federal Constitution are not absolute or unfettered, and the exercise of these powers can be challenged in a judicial review action.

“The scope and ambit of the discretionary prosecutorial powers, and whether these powers were exercised in accordance with law on the facts of any given case, should be determined by the courts,” Bar president Steven Thiru said in a statement yesterday.

Stressing that the matter is of critical public interest, Steven said there should be no usurpation of the judicial powers of the courts, as it is for the courts, and not the attorney-general, to decide on the innocence or guilt of a suspect in respect of any alleged crime.

He added that the independence of the MACC, in discharging its statutory duties under the MACC Act 2009 as an investigative and enforcement agency, must be protected, and any impediment to the performance of these duties must be prevented.

“This matter involves serious allegations of financial impropriety, including allegations of loss of public funds, and has dire implications on the administration of justice. It must therefore be resolved in a manner consistent with the principles of the rule of law,” he said.

The Bar’s judicial review application also seeks to disqualify Apandi from making any further decision on matters covered by the MACC’s  investigation papers. The attorney-general reportedly advised Najib on these matters, said Steven.

And upon Apandi’s disqualification, the Bar wants the court to issue an order allowing the solicitor-general to exercise the functions of the attorney-general in relation to the request by the MACC — under the Mutual Assistance in Criminal Matters Act 2002 — for the commission to complete its investigations in respect of the RM2.6 billion donation.

The order, said the Bar, should also enable the solicitor-general to reconsider the MACC’s recommendations in the three investigation papers, in deciding whether to exercise the discretionary prosecutorial powers under Article 145(3). It should also enable the MACC to continue with its probe into the matters without interference, it added.

On Jan 26, Apandi informed the media that he was satisfied that Najib did not commit any criminal offence in relation to the RM2.6 billion donation and SRC International cases. 

He said RM2.6 billion was a donation from the Saudi royal family, while Najib had no knowledge that money had been transferred into his personal accounts from the accounts of SRC International.  

Meanwhile, Minister in the Prime Minister’s Department Datuk Paul Low  said the country is reviewing plans to bar foreign political donations, Bloomberg reported.

Low is quoted as saying that a committee working on a framework to regulate political funding also determined that anonymous donations should not exceed RM1,000 and contributions must be held in a bank account that could be audited.  

“Political donations from foreign interest and sources should be prohibited,” Low, who chairs the National Consultative Committee on Political Funding, said in a statement. “This is necessary as a safeguard against foreign influence on local politics as well as the sovereignty of the nation.”

Low said the political funding committee is on track to complete its work within the set time frame of a year. 

Najib has said the work of the group is targeted for implementation before the next general election due by 2018.