Unconstitutional to probe AG for disobeying law, former judge says
(Malay Mail Online) – The Attorney-General (AG) cannot be investigated under the Penal Code for allegedly disobeying the law as suggested by a former Anti-Corruption Agency (ACA) director as it is deemed unconstitutional, an ex-federal court judge has said.
Datuk Wira Mohamad Noor Ahmad explained that Tan Sri Mohamed Apandi Ali cannot be investigated under Section 217 and 218 of the Penal Code as Article 145 (3) of the Federal Constitution gives him “absolute discretion” to initiate criminal prosecutions.
Section 217 states that any civil servants found knowingly breaking the law in order to save “any person from legal punishment, or subject him to a less punishment than that to which is liable” faces up to two years behind bars, a fine or both.
Under Section 218, any public servant found “framing an incorrect record or writing with intent to save person from punishment” is liable to up to three years imprisonment, a fine or both.
“One must remember that the correct policy in relation to criminal prosecution is that there is a 99 per cent case (chance of success) before a person is charged,” the ex-judge was quoted as saying by local English daily the New Straits Times.
Article 145(3) of the Federal Constitution states that the AG is granted powers, “exercisable at his discretion, to institute, conduct or discontinue any proceedings for an offence, other than proceedings before a Shariah court, a native court or a court-martial.”
News portal Malaysiakini reported earlier this month ACA’s ex-director Mohamad Ramli Manan as saying that investigations against Apandi can be carried out under Section 217 and 218 of the Penal Code which revolves around a public servant disobeying the law “with intent to save a person from punishment.”
Last month, Apandi cleared Prime Minister Datuk Seri Najib Razak of wrongdoing over the US$681 million transfer, which the AG said was a personal gift from the Saudi royal family, as well as over the RM42 million transferred from SRC International into Najib’s account. The AG had said there was no evidence Najib was aware of the SRC International transfer.
