LETTER | AG urged to assure no DAA or DNAA in Najib's pending cases

LETTER | Projek Sama urges Attorney-General (AG) Ahmad Terrirudin Mohd Salleh to make public his written opinion on Najib Abdul Razak’s partial pardon.

He should also issue a written statement that his Chambers (AGC) will pursue the three pending cases against Najib vigorously and diligently and that the AGC will not make any applications to the courts for a discharge amounting to acquittal (DAA) or a discharge not amounting to acquittal (DNAA).

He should also state that the AGC will not make any further mistakes resulting in DAA or DNAA.

The first call for making public the AG’s written opinion, made by Projek Sama on Jan 31, before the formal announcement by the Pardons Board, is now shared by increasing numbers, including G25 and lawyer Goh Cia Yee.

This, our second call for public assurance, is premised on concerns which we explain below.

We are deeply concerned about the role Terrirudin played in the partial pardon of Najib. Not only because of the reductions of jail term and fine - granted to one who still claims he is innocent of the charges he was found guilty of after due process - but also because of the likelihood that the AGC may withdraw the pending charges against Najib, resulting in DAA or DNAA.

Our concern is aggravated by the disingenuous comments made by politicians. For example, Prime Minister Anwar Ibrahim claimed that he wasn’t involved and that it was the former Yang di-Pertuan Agong’s decision based on compassion and consideration of Najib’s contribution to the nation.

But Minister in the Prime Minister’s Department (Federal Territory) Dr Zaliha Mustafa, who sits on the Pardons Board, said it was the board’s collective decision.

At the same time, Umno supreme council member Lokman Noor Adam effusively thanked Anwar for expediting the consideration of Najib’s appeal by the Pardons Board.

Double standards

Clearly there are two standards of mercy: one for political elites, and another for commoners.

The judicial concern about DNAA and DAA has been well explained by Chief Justice Tengku Maimun Tuan Mat. In a speech on Jan 15, she pointed out that, in compliance with the law, judges have to grant either DNAA or DAA when the prosecution applies for, or agrees to, applications for these grants.

Tengku Maimun further observed that “in the recent past”, the AG withdrew charges against “certain high-profile individuals”.

She lamented the result of such grants. She said “judicial independence is eroded and public confidence in the judiciary is impaired.”

She added that “the judge making the only available consequential orders is painted as corrupt, sometimes as incompetent or sometimes both.”

That is of great concern.

Our call for public assurances by Terrirudin is further warranted because of the AGC’s track record. Here are two of the most glaring examples:

1. Terrirudin made an application to the court which resulted in the DNAA of Deputy Prime Minister Ahmad Zahid Hamidi on 47 charges of corruption, despite a prima facie case having been proved against him.

2. Najib and former 1MDB CEO Arul Kanda Kandasamy were given a DAA in the High Court in the case of alleged tampering with the 1MDB audit report because (a) the prosecution failed to prove a prima facie case and (b) subsequently the prosecution failed to file the required appeal document within the stipulated time, which resulted in the appeal against the DAA being dismissed by the Court of Appeal.

Step down

If the AG is unwilling to make the public assurances we have listed, the public will inevitably conclude that he agrees with Najib’s claim that he has suffered injustice at the hands of prosecutors and judges up to the apex court.

If Terrirudin does agree with Najib, then he should tender his resignation. This is only fair to his “clients”, the Malaysian public, who believe no one should be above the law.

If anyone walks free, it must be because they have proved their innocence before the courts.

It cannot be done by short-circuiting the criminal justice system through political negotiations, by having the public prosecutor withdraw charges (resulting in DAA or DNAA) or by the public prosecutor failing to prosecute expeditiously, professionally, and diligently.

We are extremely concerned that in the DNAA for Zahid, in the DAA and failure to file appeal documents on time in the case of Najib and Arul Kanda, and now the partial pardon of Najib, justice may have been compromised by the executive which exercises its power through the AG whom it appoints.

A public assurance by Terrirudin as demanded here will help quell the flood of public anxiety which has arisen from the outcomes of cases against high-profile individuals.

To stop the rot, the Madani government must also expedite the separation of the office of AG and public prosecutor, and free the MACC from political interference.

Last but not least, the government must cease wielding police investigations as a tool for quelling public expressions of anxiety, especially in cases involving high-profile individuals. We call on the police to immediately stop the harassment of former MP Tony Pua and any other individuals or organisations who have commented on this matter.

This statement is Initiated by Project - Stability and Accountability for Malaysia (Projek Sama), the latest initiative to advocate for institutional reforms.

The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.