KUALA LUMPUR: Attorney-General (AG) Tan Sri Mohamed Apandi Ali cannot be investigated under Section 217 or 218 of the Penal Code as Article 145(3) of the Federal Constitution grants him absolute discretion in initiating criminal prosecution.
In stating the above, former Federal Court judge Datuk Wira Mohamad Noor Ahmad emphasised that Prime Minister Datuk Seri Najib Razak had not committed an offence under Section 165 of the Penal Code as the RM2.6 billion monies was a donation to political party Umno and not to the government.
Section 165 makes it an offence for a public servant to obtain a valuable thing, such as land or money, without adequate or any consideration, from somebody involved in a proceeding or business related to his (public servant) official function (duties).
“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,” said Mohamad yesterday.
Mohamad, who used to head the prosecution unit of the AG’s Chambers during the tenure of then AG Tan Sri Abu Talib Othman, was commenting on the actions of certain dissatisfied quarters who questioned Apandi’s decision to clear Najib’s name over the RM2.6 billion donation issue.
Last week, an online news portal reported a statement by former Anti-Corruption Agency (ACA) senior officer Mohamad Ramli Manan, that Apandi could be investigated under Section 217 and 218 in relation to an offence of a public servant who disobeyed direction of law with intent to shield a person from legal punishment or property seizure.
According to the portal, Ramli alleged that Najib may have committed an offence under Section 165 over the RM2.6 billion political donation.
Mohamad said prosecution cannot be initiated immediately for the purpose of search for truth or to seek the person to explain that he is not guilty merely because of the principle that “a person is presumed innocent until proven guilty”.
“Prosecution without a concrete case on any individual, what more one involving someone holding a high position in government, would cause injustice as the person’s jeopardised reputation and good name could not be repaired.
“Only a lawyer with vast experience would truly understand this situation and intricacies of prosecution,” he said.