The one consuming issue in the last three days both in the country and the world about Malaysia is not the Trans-Pacific Partnership Agreement (TPPA) rammed through both House of Parliament in a Special Parliament session or the recalibration of the 2016 Budget announced by the Prime Minister-cum-Finance Minister Datuk Seri Najib Razak today, but the decision of the Attorney-General Tan Sri Mohamad Apandi Ali on Tuesday exonerating Najib of any crime and that no charges would be brought against him in the RM2.6 billion donation and RM42 million SRC International scandals.

Both TPPA and the recalibration of the 2016 Budget were completely overshadowed by the latest scandal emanating from the Attorney-General, which shocked and stunned the nation as to how the Malaysian Anti-Corruption Commission (MACC) investigations and recommendations on the two scandals concerning the RM2.6 billion political donation and RM42 million from SRC International transferred into Najib’s personal bank accounts could be so easily shunted aside by the Attorney-General.

In fact, nobody seemed to have noticed that the TPPA was debated and passed by Dewan Negara today and Najib’s announcement on the recalibration of the 2016 Budget did not receive as much attention as Apandi’s decision 48 hours ago to exonerate Najib.

This has resulted in a boiling controversy as to whether the Attorney-General’s decision on Najib’s RM2.6 billion donation scandal and the transfer of RM42 million from SRC International into Najib’s personal accounts can be legally challenged.

This is the stand taken by Apandi himself, who declared that any questioning of the Attorney-General goes against the Federal Constitution and that it is illegal for any panel or body to be formed for that specific purpose.

Giving Apandi full support are the sycophantic ministers including the Barisan Nasional strategic communications director, Datuk Abdul Rahman Dahlan, former communications and multimedia Minister, Datuk Shabery Cheek who said that the RM2.6 billion “donation” and RM42 billion SRC International issues were “clear-cut cases …where laws were not broken” but the worst example of all goes to the Minister in the Prime Minister’s Department Datuk Azalina Othman who must take the cake for declaring that Apandi had “absolute discretion and powers” to absolve Najib of any wrongdoing.

But is Apandi’s ruling so completely water-tight and his discretion so absolute that it is constitutionally “impossible” to overturn the Attorney-General’s decision to clear the Prime Minister?

This cannot be the case, or it would make nonsense of the fundamental legal principle enunciated by Raja Azlan Shah, then acting chief justice of Malaya, in the 1979 Sri Lempah case, viz:

“Every legal power must have legal limits, otherwise there is dictatorship. In particular, it is a stringent requirement that a discretion should be exercised for a proper purpose, and that it should not be exercised unreasonably. In other words, every discretion cannot be free from legal restraint; where it is wrongly exercised, it becomes the duty of the courts to intervene.”

Is Malaysia going to have two “dictators” – the Prime Minister as a result of the National Security Council bill, and the Attorney-General, claiming “absolute discretion” ala-Apandi?

Apandi plunged Malaysia into murkier waters than the previous six months when the Prime Minister was named as involved in the RM2.6 billion political donation and RM42 million SRC International transferred into Najib’s personal bank accounts scandals – with not only seven foreign countries launching independent probes but the Malaysian Prime Minister the target of investigation by the Federal Bureau of Investigations and US Department of Justice under its Kleptocracy Asset Recovery Initiative 2010.

Now, it is not just Malaysia’s system of governance which is dragged into the mud with the Prime Minister implicated in two mega scandals, raising questions about our commitment to the principles of accountability, integrity and good governance, but he justice system and our commitment to the Rule of Law are now under national and international scrutiny with the Attorney-General’s shocking and stunning decision to exonerate the Prime Minister and claim to “absolute discretion”.

Despite Malaysia being embroiled in even murkier waters with our system of governance and now our system of justice coming under national and international microscope, there is still light at the end of the tunnel when former Federal and Court of Appeal judges, as well as Malaysia’s foremost jurists and lawyers, are prepared to stand up to challenge the obnoxious and nefarious doctrine that the Attorney-General has “absolute discretion” to the extent that he could exercise dictatorial powers and not be subject to any check or review.

As former Bar Council President Datuk Ambiga Sreenevasan had said rightly, there is no such thing as an “absolute power in a democracy” as the Attorney-General’s discretion has to be exercised reasonably and after taking into account proper factors.

This is also clearly expounded in the Rosli Dahlan case which is upheld by the Court of Appeal that the Attorney-General’s discretion is not absolute but open to review.

Immediately after the exoneration by the Attorney-General, Najib Razak said that the cases of his mega scandals had been closed and that its time for Malaysia to “move on”.
Najib cannot be more mistaken.

The events of the last three days have shown that it is impossible for Malaysia to move on unless and until – apart from the original world-class twin mega scandals – the second conundrum thrown up by Najib’s scandals are also resolved: whether the Attorney-General has “dictatorial powers” to exercise “absolute discretion” to exonerate the Prime Minister of any wrongdoing, regardless of the circumstances.

As the resolution of the latest conundrum would require courageous action by both the political and legal/judicial communities, it would be proper to ask what is the stand of the PAS President, Datuk Seri Hadi Awang on the issue – whether Hadi supports Attorney-General Apandi’s decision that Prime Minister Najib had done no wrong in the RM2.6 billion donation and RM42 million SRC International scandals and that the AG has “absolute” discretion on these matters.

The question is pertinent and relevant as Hadi is the only Opposition Leader who gives unstinting support to Najib over the RM2.6 billion donation and RM42 million SRC International scandals, to the extent that Hadi has earned the Prime Minister’s public praise for his support for the Prime Minister over the RM2.6 billion “donation” and 1MDB-related allegations.

(Speech at the ceramah after launching of the DAP Community Centre in Paya Jaras on Thursday, January 28, 2016 at 9pm)