By Mat Zain bin Ibrahim

We all make mistakes. It’s only natural as human being, that we have our own weaknesses and that we get things wrong from time to time.

Prime Minister Dato Seri Mohd.Najib Tun Razak,like any other ordinary human being, naturally has weaknesses and do get many things wrong from time to time, albeit not ready to own-up to any of them.However, with due respect, I am of the opinion, that one of his greatest misjudgement was retaining Tan Sri Abdul Gani Patail as the Attorney General.

PM Najib knew all along, well before he assume the Premiership, that the AG have been proven to be involved in some criminal wrongdoings. Despite being warned, that retaining the AG would be an added liability to himself and a big risk to his administration, he chose to let the AG not only to remain in office, but gave the latter wider space.

I know for certain, that the PM was fully advised on this matter. The possibility of the PM not being able to fathom the seriousness of the issue should not arise at all.

The Premier’s own remarks on the roles of both Gani Patail and Musa Hassan, during our conversation in October 2008, convinced me that the PM have already been made aware of the background of the case, before our meeting. The follow-up report specially prepared for him, in February 2009, would have cleared any doubts the PM may have.

Anyone would have expected, that once the PM has been made aware, that the administration of justice, has been tainted with frauds and illegalities, especially when the perpetrator is the top most legal officer of the country,it is incumbent upon him, to act on the information, swiftly and decisively. Sadly, after more than three years since the matter was brought to his personal attention,the situation seems to be moving from bad to worse.

This is not about “Black-Eye” as the Cabinet tried to portray.This is not about who assaulted who. This is about cover-ups and abuse of our legal system. This is about those in power knowingly allowing the administration of justice to be filled to the brim with frauds, deceits and illegalities. This is about misleading the citizens and giving them false hopes. This is about whether the people in power are sincere and truthful to their words or otherwise.

I am referring to the article posted in Malaysian Insider dated 7th October 2011 entitled “Putrajaya stands by refusal to charge AG”. I choose not to split hairs with the Honourable Minister in Prime Minister’s Department who has given the Government’s lengthy reply over this issue on 14.12.2010. I have reasons to believe, the Minister himself has been misled.

For the benefit of all,the facts in issue are summarized below:

1. The allegation against Gani Patail, Musa Hassan, Dr.Abdul Rahman Yusof and myself for falsifying evidence was made on 1.7.2008.

2. The investigation was conducted by the ACA (later MACC). I must say that the investigation was done thoroughly and professionally.

3. It was at the decision stage by the Legal Division,that the twisting and turning started.

4. The investigation paper never went to the AG’s Chambers (AGC). I was made to understand that no one at the AGC have sight of the paper. Not even the Solicitor General (SG). The SG was never involved in the investigations. His part was limited to appointing the so called Independent Panel Members (IPM) as Deputy Public Prosecutors (DPPs) only,without having the full facts of the case. How the IPM were chosen,who decided to choose them and the panel’s term of reference, was never made known.

   Nonetheless one thing of which I am certain, is that the Investigation paper involving the AG, was not closed by the SG as most people would have thought.

5. The paper was closed by one Dato Abdul Razak Musa(Razak) of the MACC. Razak have the powers of a DPP no doubt, but considered “junior” in rank within their hierarchy.

6. The reasons the SG did not close the paper himself, although he was the one who appointed the IPM, but instead allowed Razak who is more junior to him, to do the closure, is for SG or Razak to explain.

7. As to why the IPM did not close the investigation themselves, since they were all given the powers of a DPP, is for the SG to explain, since he was the one who appointed them.Whether Razak has the power to supersede the SG and has the authority to overturn the findings of at least one member of the IPM, are for them to disclose.

8. With regard to appointing the IPM, there are no such provisions in the Criminal Procedure Code (CPC) or for appointing any other Panel for that matter. As far as I know there’s no such definition anywhere in the CPC.

9. There are however provisions for the appointment of DPPs and senior DPPs as stipulated under Seksyen 376 CPC. These appointments can only be made by the Public Prosecutor himself. The law says, that only the PP, and he alone can make such appointment. That powers cannot be exercised by anybody else, under any circumstances, not even by the SG, full stop. Anyone that is unsure about this provisions are free to refer to the CPC which is a public document. If any person says, that the SG has the powers to appoint DPPs, then either that person is wrong or the CPC made a mistake.

10. On 1.3.2009 the then Chief Commissioner of MACC, Dato Seri Mohd. Said Hamdan, during an elaborate press conference, announced that all the 3 IPM, independently found that the allegation against Gani Patail and the others are baseless. However on 11.3.2009 The Hon. Minister announced in Parliament that one member of the IPM, found that there are indeed evidence to prove Gani Patail’s involvements in the alleged wrongdoing. Both Mohd. Said and the Minister cannot be right at the same time, since both gave contradicting statements on the same matter.

    What both of them may not realize was that, I have already informed the PM on the formation and findings of the so called IPM as early as October 2008, five months before their announcements were made public.

11. Incidentally during his press conference, Mohd. Said did state, which I am quoting here; “We went to the extent of appointing independent persons. But how can we make the public believe the findings? Do you think when we release this information,the public will accept it?” (The Star 1.3.2009). True enough, when the results was made known, the public got more confused and unsure whether to believe Mohd. Said or the Minister.Both maintained they were never wrong. Simply, it goes to show that Mohd. Said knew all along that what they did was not according to the laws and procedures,that he rightly anticipated public backlash.

12. The powers to conduct an investigation on any person is one thing. Even a Sergeant can do the job. The decision to charge the AG for the crimes he committed, are within the powers of any DPP, but the powers to adjudicate the conduct of an Attorney General is totally another matter. This power is beyond the reach of the SG or the MACC Chief or any Minister.

13. The provisions in the Constitution are very clear. When the conduct of the Attorney General becomes an issue, only the YDP Agong is empowered to establish a Tribunal upon a representation presented to His Majesty by the PM. There’s no other option.This is a matter strictly between the PM and the Agong.

14. No public servants can “pakat-pakat” (conspire) among themselves to circumvent the protocol, and coined some new methods, like appointing an IPM in lieu of the Tribunal to clear the AG.Especially so, when those people involved,are directly or indirectly subservient to the AG themselves. I consider this, an act of usurpation.

I must admit there are some pertinent points which I have not covered yet, but I sincerely hope the explanations given thus far, are simple and easy to comprehend. I hope for the moment, they are sufficient for the public to have a better understanding of the issues at hand.