Media Statement – 10/7/2024
No to the appointment of current Public Prosecutor as Federal Court Judge or Chief Judge of Malaysia – Protect the Independence of Public Prosecutor and the Judiciary
Another removal of the Public Prosecutor/Attorney General?
It is best that Malaysia’s sitting Public Prosecutor/Attorney General Ahmad Terrirudin Salleh is not appointed Federal Court Judge. It was reported that he was ‘expected to be appointed as a Federal Court judge, with the possibility of later assuming the role of Chief Judge of Malaya (CJM)…nomination has been submitted by the Prime Minister’s Office for approval by the Conference of Rulers…’(Malay Mail, 9/7/2024)
First, confirm whether the Judicial Appointments Commission (JAC) recommended Ahmad Terrirudin Salleh to be appointed Federal Court Judge?
Was this part of first recommendation of the JAC, or was it an additional recommendation following a ‘request for two more names to be selected and recommended for his consideration with respect to any vacancy’ made by the Prime Minister pursuant to Section 27 of Judicial Appointments Commission Act 2009?
Or, is the Prime Minister ignoring the recommendation of JAC and forwarding his own name to the Conference of Rulers?
We have to recall that ‘Malaysia’s experience from such events as the 1988 Judicial Crisis and the 2008 Royal Commission on the Video Clip, has taught us that part of what ails our current system stems from (i) Executive subjugation of the Judiciary; (ii) the pivotal role granted to the Executive in relation to judicial appointments (iii) the lack of transparency and accountability in the judicial appointments process and (iv) there being too much power and discretion being placed in the hands of too few…’.
Hence, to preserve the independence of the judiciary, and ensure that the executive, including the Prime Minister, has no more power to decide on judge’s appointments and elevations. This struggle led to the formation of the Judicial Appointments Commission (JAC)./
Judicial Appointments Commission Act 2009 fell short and is criticized, amongst others, because it still retained the power with the Prime Minister. The Prime Minister could still ignore the Judicial Appointments Commission’s recommendations.
What was needed was a Constitutional amendment, to say that the King will act on the advice of an Independent Judicial Appointments Commission, and no longer will the Prime Minister have the power to choose and decide on judges.
Why Ahmad Terrirudin Salleh should not be appointed Federal Court Judge?
He is the current Public Prosecutor/Attorney General, and he should be so until his retirement, unless removed for some serious misconduct or good reason. This security of tenure also ensures the INDEPENDENCE of the Public Prosecutor/Attorney General. There are many other judges or qualified persons in Malaysia that can be appointed Federal Court Judge and/or Chief Judge of Malaya.
If he is suddenly appointed a Federal Court Judge, he will no more be the Public Prosecutor/Attorney General.
Hence, is there a reason for the removal of this sitting Public Prosecutor/Attorney General?
It was alleged that previous Public Prosecutor/Attorney General Abdul Gani Patail has reportedly been replaced ahead of his retirement date in October and amidst the ongoing special task force probe on 1MDB, which he was involved in, where there was a risk that he may decide to prefer charges against then sitting Prime Minister Najib Razak?
Could it be that Public Prosecutor/Attorney General Ahmad Terrirudin Salleh may also be considering recharging Zahid Hamidi using Section 254A of the Criminal Procedure Code, states, amongst others, that ‘…where an accused has been given a discharge by the Court and he is recharged for the same offence, his trial shall be reinstated and be continued as if there had been no such order given? Could he be considering commencing prosecution against some others?
Zahid Hamidi – Decision whether he will be RE-charged outstanding
We recall that former Attorney General and Public Prosecutor Tan Sri Idrus Harun decided to questionable discontinuation of Deputy Prime Minister Zahid Hamidi, criminal case after prosecution had proven a prima facie case on all 47 charges, whereby this decision was delivered on 4/9/2023, one day before his last day in office.
One of the possibly acceptable reasons was that there is ‘a need for further investigation by the Malaysian Anti-Corruption Commission (“MACC”)’ based on matters raised in the letters of representations submitted by Zahid. The Deputy Prime Minister was then given a Discharge Not Amounting to An Acquittal (DNAA).
Ahmad Terrirudin Salleh was then appointed as Attorney General/ Public Prosecutor on 6/9/2023, and according to law, he had the power to reinstate the trial after discharge.
Many have been waiting for the completion of the MACC investigations, and for the decision of Attorney General/ Public Prosecutor Ahmad Terrirudin whether to recharge Zahid Hamidi on all 47 charges, or some of them, or not. People are waiting also for the reasons of Ahmad Terrirudin, being Attorney General/ Public Prosecutor for whatever decisions made.
Being the new Attorney General/ Public Prosecutor, he had the power to review the decision of his predecessor, Idrus Harun, and indicate whether he agrees or not.
Whether Zahid Hamidi is guilty or not should be up to the Court to decide. In this case, prosecution had already managed to overcome the biggest hurdle, in proving a prima facie case not for some charges, but all 47 charges. This means that if Zahid Hamidi, during his Defense stage fails to raise reasonable doubt, he will be convicted and sentenced. Any ‘new evidence’ that Zahid may have, he can submit to court and let the court decide. The discontinuation of the case ROBS the Court of its jurisdiction/power in this criminal trial.
Attorney General/ Public Prosecutor Ahmad Terrirudin maybe now of the position that it be BEST that the Court decides – so, he may tender all ‘new evidence’ to court to let the court decide. He may not want to DENY the Court the power to decide on guilt or innocence.
One wonders whether it is this worry about what the current Attorney General/ Public Prosecutor Ahmad Terrirudin may do or not do, be it with Zahid Hamidi’s case or maybe the commencement of prosecution against others, is a consideration of why he should speedily be removed as Attorney General/ Public Prosecutor, and maybe made a Federal Court Judge?
Post-Retirement Conduct and Perception of Independence Whilst in Office
Former attorney general Tan Sri ldrus Harun, after discontinuing the case against Zahid Hamidi, has been appointed on 10/10/2023 as chairman of Amanah Raya Bhd (AmanahRaya) trustee company owned by the Minister of Finance Incorporated ("MOF Inc."), whereby the Minister of Finance is Prime Minister Anwar Ibrahim.
Was the appointment of Idrus Harun could raise the question of whether this was a ‘thank you’ gift from Prime Minister Anwar?
Maybe, this appointment has no connection with what he did in Zahid Hamidi’s case, but the primary concern here is public perception.
Independence of the Judiciary and the Public Prosecutor
For the preservation of the independence of the Judiciary, and also the Public Prosecutor their security of tenure until retirement age must be respected. No judge or the Public Prosecutor should be removed prematurely, even for reasons like appointment as Judges or Public Prosecutor. They can and should only be removed for dereliction of duty by a fair and just mechanism for the removal of Judges and/or Public Prosecutor.
MADPET (Malaysians Against Death Penalty and Torture) also believe it is best that former judges, former Public Prosecutors and senior Public Officers are not also appointed to any position post-retirement by government, government linked entities or even corporate sector to preserve the public perception that they were truly independent, dispelling the possibility of ‘corruption’ or abuse of power whilst in office. A ‘cooling off’ period should be mandatory as part of their condition of appointment as judges, public prosecutors and senior officers in law enforcement and public bodies.
MADPET calls for a Constitution Amendment that removes the role of the Prime Minister or the Executive branch of government in the appointment of Judges and also the Public Prosecutor. The independent Judicial Appointments Commission (JAC) should advice the King on judicial appointments. In the interim, the Prime Minister must follow the JAC’s recommendation with regard the appointment of Judges, including the Chief Judge of Malaya.
MADPET calls for the respect and safeguarding of the independence of the Judiciary, and also the Public Prosecutor.
Charles Hector
For and on behalf of MADPET(Malaysians Against Death Penalty and Torture)
See also:-
JUDICIAL APPOINTMENTS COMMISSION BILL 2008 - not at all what the people asked for...
The removal of Gani, who had been
leading a multi-agency investigation on corruption allegations involving
1 Malaysia Development Berhad (1MDB) and Prime Minister Datuk Seri
Najib Razak, happened on the same day as Najib’s announcement of a
Cabinet reshuffle that saw other 1MDB critics dropped from government,
notably his deputy Tan Sri Muhyiddin Yassin and Umno vice-president
Datuk Seri Shafie Apdal. - Malay Mail, 29/7/2015
Report: AG Ahmad Terrirudin poised for promotion to Federal Court, potential candidate for Chief Judge of Malaya
KUALA LUMPUR, July 9 – Attorney General (AG) Datuk Ahmad Terrirudin Salleh is reportedly expected to be appointed as a Federal Court judge, with the possibility of later assuming the role of Chief Judge of Malaya (CJM).
Free Malaysia Today reported citing a source that Terrirudin’s nomination has been submitted by the Prime Minister’s Office for approval by the Conference of Rulers, which will convene next week.
“He is likely to be appointed a Federal Court judge first, with the CJM appointment anticipated by the end of September, adhering to constitutional requirements,” said the anonymous source cited by the news portal.
The report also claimed that there is also a possibility that Terrirudin may be made a judge of the apex court while leaving the CJM position — the third-highest position in Malaysia's judiciary — temporarily vacant.
The source however did not explain the reasoning behind this potential move.
Currently, Court of Appeal president Tan Sri Abang Iskandar Abang Hashim is performing the duties of CJM on an interim basis.
The CJM post became vacant following the mandatory retirement of Justice Tan Sri Mohamad Zabidin Mohd Diah on February 29.
Terrirudin was formerly the solicitor general before being appointed the AG on September 6 last year.
He had replaced his predecessor Tan Sri Idrus Harun whose contract ended on September 5. - Malay Mail, 10/7/2024Press Release | The Attorney General’s Chambers’ Media Statement Fails to Provide Justifiable Reasons to the Public on the Withdrawal of the 47 Charges against Zahid Hamidi 7 Sep 2023 10:30 pm
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The
Malaysian Bar is perturbed over the recent withdrawal by Deputy Public
Prosecutor (“DPP”) Datuk Mohd Dusuki Mokhtar of all 47 charges faced by
Deputy Prime Minister, Dato’ Seri Ahmad Zahid Hamidi (“Zahid Hamidi”),
upon receiving instructions from then-Attorney General (“AG”), Tan Sri
Idrus Harun (“Idrus Harun”), pursuant to Article 145(3) of the Federal
Constitution and section 254(1) of the Criminal Procedure Code. The DPP
pointed towards representations made by the defence in December 2022,
alluding that there is a need for further investigation by the Malaysian
Anti-Corruption Commission (“MACC”).1,2
The Malaysian Bar notes that the first letter of representation sent in by the defence was dated 8 December 2022 and took place more than three years after the case first commenced in the High Court. In addition, this representation letter was presented after the 15th General Election (“GE15”), after the appointment of the Prime Minister on 24 November 2022 and after the complete list of Malaysian Cabinet members was released on 2 December 2022.
It is further observed that on 8 August 2023 — less than a month ago — previous lead DPP Datuk Raja Rozela Raja Toran (“previous lead DPP”) was reported to have requested for an early retirement since 3 April 2023, and therefore, could no longer lead the prosecution for Zahid Hamidi’s trial.3 Idrus Harun was reported to have said at that juncture that the previous lead DPP would be on leave prior to her retirement starting from 30 August 2023. To further put it in context, it is also known that the current Chief Commissioner of MACC’s tenure was extended for another year on 10 May 2023,4 whereas Idrus Harun’s tenure was also extended for another six months from 6 March 2023.5 These dates, development of events, and actors in play, fuel much of the uproar by the public.
What is unpalatable is that Zahid Hamidi’s trial for the 47 charges commenced on 18 November 2019, and about 77 days of trial have elapsed. After 99 prosecution witnesses testified in the trial, the High Court on 24 January 2022 ordered Zahid Hamidi to enter defence on all 47 charges. This essentially means that the High Court had found that a prima facie case has been established by the prosecution, thereby necessitating Zahid Hamidi to enter his defence. This case was at the stage of defence with Zahid Hamidi’s 15th witness giving evidence, when the prosecution applied for a “discharge not amounting to an acquittal” (“DNAA”) on 4 September 2023.
The Malaysian Bar asserts that the Attorney General’s Chambers (“AGC”) has tarnished its own reputation and credibility as the prosecuting party and that of the MACC as the investigating body, when it applied for a DNAA at such a late juncture after a prima facie has already been established by the previous lead DPP.
The recent media statement issued by the AGC dated 5 September 2023 (“Media Statement”)6 was completely devoid of proper justifications as regards why it had requested for a DNAA. With the DNAA granted by the High Court, Zahid Hamidi’s counsel seized the opportunity to push for an outright acquittal instead of a DNAA. Let us be clear and make no mistake about it: the learned High Court Judge had no alternative but to decide on either a DNAA7 or an acquittal. It therefore rings hollow for the AGC to wholly attribute the withdrawal of the case to the High Court and use that as a reason in the Media Statement, instead of providing a detailed explanation.
The High Court Judge in this case had lamented that should the prosecution decide in the near future to not proceed with any further charges, then much precious judicial time would have been wasted and a great amount of taxpayers’ money would also have been wasted. On this note, the Malaysian Bar stresses that the AG must take responsibility and be accountable to the citizens of the country; and should the prosecution decide in the near future to proceed with any further charges, then it should avail itself of the process of “reinstatement of trial after discharge” under section 254A of the Criminal Procedure Code, under which Zahid Hamidi’s trial shall be reinstated and continued as if no such DNAA order had been given.
In the recent past, there have been cases where criminal charges against certain politicians were dropped by the AGC amidst trial, reportedly following “instructions”,8 or as a result of representations.9,10 These cases are classified as “high-profile cases” as they hold national and public interests primarily due to the substantial sums of money allegedly misappropriated by those individuals in positions of power and authority.
Just to add for good measure, the Malaysian Bar expects that good sense and justice will prevail, and that this unhealthy trend will not continue unabated — especially in the light of the ongoing 1MDB case, the ongoing trial which former Prime Minister Dato’ Sri Najib Razak is facing,11 and his wife Datin Seri Rosmah Mansor’s second corruption case where she is facing 12 money laundering charges and five counts of failure to declare her income to the Inland Revenue Board.12
What is abundantly clear to the Malaysian Bar — which has consistently pressured the government of the day — is that there must be real political will to carry out a complete revamp of the structure within the AGC where the roles of the AG and the Public Prosecutor must be separated to create true independence in the exercise of prosecutorial powers vested with the Public Prosecutor, free from any influence of the Executive. The AG can take its advisory role to the government, but the Public Prosecutor acts as the guardian of public interest and must fulfil its functions and duties entrusted with utmost integrity, free from political influence and bias, to maintain public confidence in the Malaysian criminal justice system.
The Malaysian Bar notes that the current Government of the day had, recently in August 2023,13 announced that it will undertake a comprehensive empirical study within a year before finalising the proposed separation of the AG’s Office from the Public Prosecutor’s Office. The Zahid Hamidi’s case has shown all of us that it is increasingly urgent that pivotal changes must take place by 2024 so that our criminal justice system is strengthened to remove prospects and/or appearance of bias in the way politicians are being charged, and in the way charges against them are being withdrawn.
Karen Cheah Yee Lynn
President
Malaysian Bar
7 September 2023
“The reasons given by the learned DPP, including that of the setting up of the RCI [...] does not in any manner suggest that as far as the charges involved in this case [is concerned], that this is the end of the matter.” — High Court Justice Datuk Collin Lawrence Sequerah
KUALA LUMPUR (Sept 4): The prosecution on Monday decided to withdraw all 47 charges of criminal breach of trust, graft, and money laundering faced by Deputy Prime Minister Datuk Seri Dr Ahmad Zahid Hamidi, after applying to discharge all the charges.
The High Court judge in the Yayasan Akalbudi trial, Datuk Collin Lawrence Sequerah, upheld the prosecution’s application for a discharge not amounting to acquittal (DNAA) for Zahid, as opposed to the defence’s request for a full acquittal.
A DNAA means an accused person can face trial for the same charges in the future, if the prosecution decides to reinstate them.
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The decision ended a trial which had spanned three years and ten months involving 99 witnesses, and which had established a prima facie case with Zahid having entered his defence.
At the start of the trial on Monday, deputy public prosecutor (DPP) Datuk Mohd Dusuki Mokhtar told the judge that he had instructions from Attorney General Tan Sri Idrus Harun to discontinue the charges against Zahid.
Mohd Dusuki told the judge that the case should be classified as DNAA as the Malaysian Anti-Corruption Commission (MACC) is still investigating the charges, after Zahid had sent letters of representation to both the AG and the MACC earlier this year.
However, Zahid’s lawyer Datuk Hisyam Teh Poh Teik had asked the judge to consider a full acquittal instead, as the prosecution did not give a timeline to complete its investigations.
Sequerah asked the court to stand down while he deliberated on the matter and came back a few moments later to quash the defence's application and uphold the DNAA sought by the prosecution.
In reading out his decision, Sequerah said the prosecution had intimated that while it has sought a DNAA, investigations against Zahid are still ongoing.
“It is clear from the reasons given by prosecution that investigations are still ongoing as a result of representations made by the defence. However, it must be borne in mind that it was intimated to the court on a previous occasion, when an adjournment was sought for by the defence, that these representations took up several pages, I think it ran into hundreds of pages, if memory serves me correctly,” the judge said.
“It is therefore justified that the prosecution needs more time to examine these representations, which also involves taking statements from various individuals,” Sequerah added.
Sequerah also said the prosecution had asked for the DNAA based on a Royal Commission of Inquiry (RCI) on former AG Tan Sri Tommy Thomas’ controversial memoir. According to the prosecution, there is a need to investigate Thomas’ memoir, which is relevant to Zahid’s charges.
The judge said that just because the DNAA is granted, this does not mean that it is the end of the matter.
“The reasons given by the learned DPP, including that of the setting up of the RCI although they do not have a timeline, does not in any manner suggest that as far as the charges involved in this case [is concerned], that this is the end of the matter,” he said.
Sequerah further said the trial commenced on Nov 18, 2019 and to date, some 77 days of trial has elapsed. He also added the case was at the defence stage with Zahid’s 15th witness giving evidence.
“The prosecution have in my considered view, given considered reasons why they seek a DNAA in this case,” Sequerah said before granting the DNAA.
Zahid, who is Bagan Datuk Member of Parliament, was ordered by Sequerah to enter his defence in respect of all 47 corruption charges in relation to Yayasan Akalbudi last year.
Twelve of them are criminal breach of trust charges, followed by eight for graft, and 27 for money laundering.
In October last year, Zahid was acquitted of a separate set of 40 graft charges in relation with an award of a contract for a foreign visa system (VLN) and one-stop services (OSC) in China when he was home minister.
At the time, the High Court judge Datuk Mohd Yazid Mustafa found that the prosecution had not made out a prima facie case as it had failed to prove the element of graft.
Zahid has
since sent letters of representation to the Attorney General’s Chambers
with regard to the prosecution’s appeal over the VLN case. - Edge , 4/9/2023
Former AG Idrus Harun appointed as Amanah Raya chairman
KUALA LUMPUR: Former attorney general Tan Sri ldrus Harun has been appointed as the new chairman of Amanah Raya Bhd (AmanahRaya) effective from Oct 10.
Prior to his appointment, Idrus served as a deputy public prosecutor under several departments such as the Royal Customs & Excise Department and Prosecution Division of Attorney General's Chambers Malaysia.
He had also served as the Terengganu state legal advisor, senior federal counsel of the Election Commission of Malaysia and Malaysian Anti-Corruption Commission, as well as a parliamentary draftsman.
Idrus was previously appointed as the solicitor general in April 2006 and later as the court of appeal judge in September 2014.
He was subsequently appointed as the federal court judge in November 2018 prior to his appointment as the AG of Malaysia from March 2020 up to his retirement in September 2023.
With his wealth of experience and judicial excellence,
AmanahRaya is confident that Idrus will continue to propel the company
to greater heights. - NST,10/10/2023?
Abdul Gani Patail's service as the attorney-general ended yesterday, after holding the post for 11 years.
Contacted by Malaysiakini , Gani, who is reportedly in the dark over this development, refused to speculate on his removal.
"I don't want to say a word," he said.
Asked if this was related to the special task force probing 1MDB, Gani replied: "Never mind. I don't want to say a word. Nanti saya cakap ni banyaklah."
It is unclear if Gani ( photo ) meant that he would elaborate on the matter later when he remarked, "nanti saya cakap in banyaklah."
This morning, chief secretary to the government Ali Hamsa released a statement announcing that Gani had health problems and would be replaced by former Federal Court judge Mohamed Apandi Ali.
"The Yang di-Pertuan Agong, on advice from the prime minister, has consented to Apandi's appointment as the attorney-general, effective July 27.
"Gani will continue serving the country as a judicial and legal service officer until he undergoes mandatory retirement on Oct 6, 2015," Ali added.
Ali's statement did not say if either Gani or Apandi would now head the 1MDB task force.
Constitution states removal must be done by tribunal
A check by Malaysiakini showed that the Federal Constitution stipulates that the person holding the position of AG can only be removed via a tribunal appointed by the Yang di-Pertuan Agong.
Article 145 (6) states: The person holding the office of Attorney-General immediately prior to the coming into operation of this Article shall continue to hold the office on terms and conditions not less favourable than those applicable to him immediately before such coming into operation and shall not be removed from office, except on the like grounds and in the like manner as a judge of the Federal Court.
In relation to the removal of a Federal Court judge, Article 125 (3)
states: If the Prime Minister, or the Chief Justice after consulting the
Prime Minister, represents to the Yang di-Pertuan Agong that a judge of
the Federal Court ought to be removed on the ground of any breach of
any provision of the code of ethics prescribed under Clause (3b) or on
the ground of inability, from infirmity of body or mind or any other
cause, properly to discharge the functions of his office, the Yang
di-Pertuan Agong shall appoint a tribunal in accordance with Clause (4)
and refer the representation to it; and may on the recommendation of the
tribunal remove the judge from office.- Malaysiakini, 28/7/2015
Gani Patail’s termination according to law, new AG says
KUALA LUMPUR, July 29 — Tan Sri Abdul Gani Patail’s termination as Attorney-General (AG) was in line with the Federal Constitution, his successor Tan Sri Mohamed Apandi Ali said today after the Malaysian Bar criticised Gani’s removal as unconstitutional.
Apandi also said that his predecessor’s rank was not reduced in any way and cited several provisions from the Federal Constitution to support the government decision for a replacement.
“Clause (6) of Article 145 of the Federal Constitution does not apply as it is a savings provision which only applied to the incumbent Attorney-General at the material time when the amended Article 145 came into force,” the former Federal Court judge said in a statement.
“This is clearly stated in Clause (6) of Article 145. The Attorney General at the time was Cecil M. Sheridan who served as Attorney General from 1959 to 1963,” he added.
Article 145(6) reads in full: “The person holding the office of Attorney General immediately prior to the coming into operation of this Article shall continue to hold the office on terms and conditions not less favourable than those applicable to him immediately before such coming into operation and shall not be removed from office except on the like grounds and in the like manner as a judge of the Federal Court”.
Apandi noted that Article 145(5) states that the AG holds office during the pleasure of the Yang di-Pertuan Agong.
“Hence the mode of removal referred to in Clause (6) of Article 145 of the Federal Constitution is not applicable to Attorneys General appointed after 16 September 1963,” he said.
Apandi also insisted that Gani’s removal, which was announced yesterday, did not violate Article 135 of the Federal Constitution on restrictions on dismissal and reduction in rank of public servants, after the Malaysian Bar said that the termination appeared to contravene Article 135(5) that mandates reasonable opportunity to be heard.
“This is because Clause (4)(b) of Article 132 of the Federal Constitution expressly provides that Part X of the Federal Constitution, which includes Article 135, does not apply to the office of the Attorney General. In any case, Tan Sri Abdul Gani Patail has neither been dismissed from nor reduced in rank in the Judicial and Legal Service,” he said.
The Chief Secretary to the Government announced yesterday that Gani was terminated as AG effective July 27 due to health reasons, but he will continue to serve as a judicial and legal services officer until October 6 this year, when he reaches his compulsory retirement age.
The removal of Gani, who had been leading a multi-agency investigation on corruption allegations involving 1 Malaysia Development Berhad (1MDB) and Prime Minister Datuk Seri Najib Razak, happened on the same day as Najib’s announcement of a Cabinet reshuffle that saw other 1MDB critics dropped from government, notably his deputy Tan Sri Muhyiddin Yassin and Umno vice-president Datuk Seri Shafie Apdal. - Malay Mail, 29/7/2015
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