Azimah judgement in Apandi defamation case demands a Constitutional Amendment to make the Attorney-General accountable and responsible for his decisions if one-quarter of MPs demands a substantive motion to review his decision In Parliament

The Azimah Omar judgement in the Mohamed Apandi defamation suit against me showed that we have in Apandi the worst Attorney-General in Malaysian history and the need for a Constitutional amendment to make the Attorney-General accountable and responsible for his decisions if one quarter of Members of Parliament demands in a substantive motion to review his decision in Parliament.

For this to become a reality, both the Constitution and the Dewan Rakyat Standing Orders have to be amended.

The meaning of the “non-justiciable” and “non-reviewable” authority of the Attorney-General under Article 145 of the Constitution or to use her exact words, “his perplexing refusal to prosecute Najib Razak and his refusal to seek mutual legal assistance from international agencies to investigate the 1MDB scandal under Section 8(2) of the Mutual Assistance in Criminal Matters Act 2002”, was considered in the Azimah judgement.

This is what Justice Azimah said in her judgement:

“52. This stance was fervently contended to the extent as if the Plaintiff (Apandi) insists that nobody may scrutinize or question his actions and prerogatives during his tenure as the Attorney-General. And the Plaintiff placed avid reliance on Hanipah Binti Farikullah J’s (now JCA) decision in Bar Malaysia v Peguam Negara Malaysia & Anor [2016] MLJU 1597 which was affirmed by the Court of Appeal and even the Federal Court.

“53. Nonetheless, this Court must highlight that the Plaintiff’s reliance on this case is sorely misplaced. Of course it is not this Court’s intention to challenge or override this decision, but it is absolutely pertinent for this Court not to lose sight of two facts. The first fact being that the Judicial Review was decided on a technicality and was never decided on its merits. Thus, the legality or correctness of the Plaintiff’s refusal to seek mutual legal assistance and refusal to prosecute Najib Razak was never tested and never tried. This is obvious from the reported decision itself.

“Based on the above reasons in my view, strong reasons exist for this Court to dismiss the Applicants’ application at this preliminary stage without proceeding to the hearing of the substantive issue.”

“54. The 2nd fact being, the non-justiciability or non-reviewability of the Plaintiff’s prerogatives is by no means any bar or restraint against public scrutiny, dialogue, investigation, or commentary. There is no nexus whatsoever between the people’s right to criticise or question the Plaintiff’s prerogatives and the non-justiciability or non-reviewability of the Plaintiff’s prerogatives in Court. The Plaintiff by all means cannot fashion this decision as suit and armour to reign supreme and to act with impunity.

“55. Even if the Attorney-General’s prerogatives are non-justiciable and nonreviewable in Court, it does not at all mean that those prerogatives cannot be scrutinized in the public sphere. Of course, no Attorney-General ought to be judicially enforced to act in any manner, but nevertheless, the manner in which he so exercises the same prerogatives and discretion shall remain open to be questioned and be criticised. If not then the Attorney-General’s power would be absolute, and elementary jurisprudence already tells that absolute power can corrupt absolutely.

“56. Thus, since the Court here is not moved, and in fact cannot be moved to review and force the Attorney-General to exercise his discretions, therefore, it still remains within this Court’s discretion to consider facts and evidences to deliberate on the Plaintiff’s actions and inactions, at the very least to determine the fairness, truth and justifiability of the Defendant’s impugned Statement.”

I said earlier that Mohamed Apandi is the worst Attorney-General in the history of Malaysia. This could be seen from the Azimah judgment, in particular over three matters:

  1. Apandi’s “perplexingly magnanimous decision to absolve and exonerate Najib Razak and to prefer the fantastical narrative of an unproven donation”;
  2. Apandi’s “audacity to close investigations (NFA/KUS) although not having properly confirming any actual particulars and evidence of the fantastical donation by the unnamed Saudi Royalty, and while being aware that RM42 million was transferred into Najib Razak’s personal account from SRC’s account”; and
  3. Apandi’s “baffling refusal either to accept or offer mutual legal assistance from the Swiss Attorney-General and the United States Department of Justice to investigate the 1MDB scandal (to trace monies siphoned out of the Malaysian jurisdiction)?”

Is Apandi capable of defending himself from the charge of being the worst Attorney-General in Malaysian history?

(Media Statement by DAP MP for Iskandar Puteri Lim Kit Siang in Parliament on Monday, 25th July 2021)

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