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PETALING JAYA: Suspects investigated by the Malaysian Anti-Corruption Commission (MACC) for receiving political donations whose files were closed for unknown reasons should still be prosecuted, a lawyer says.
This follows the anti-graft agency’s claim that charges against former Sabah chief minister Musa Aman seven years ago were not pursued as the investigation was seen as related to political donations.
SN Nair said there was no law to prohibit the prosecution of individuals for receiving corrupt money in the name of political donations.
“The public prosecutor will not frame charges only when the suspect – the giver or taker – becomes a crown witness for the state,” he told FMT.
Last Friday, MACC said it had submitted the outcome of its investigation into Musa to the Attorney-General’s Chambers (AGC) in July 2012. It was the AGC that had decided against pursuing charges against Musa, it said, adding that it was the AGC’s policy at the time not to consider political donations an offence.
Musa was charged on Nov 5 with 35 counts of corruption for allegedly receiving about US$63.29 million (RM264 million) in bribes involving timber concessions in Sabah.
He was said to have committed the offences between 10 and 14 years ago.
Abdul Gani Patail was the attorney-general (AG) and public prosecutor during MACC’s investigation into Musa.
Gani was AG for 13 years until 2015, when he was removed due to suspicions that he was part of an alleged conspiracy to prosecute then-prime minister Najib Razak over the 1MDB scandal.
FMT understands that the MACC review panel advised investigators to resubmit the file for Gani to reconsider his stand in Musa’s case.
MACC said it reviewed the investigation paper against Musa several months ago upon receiving new information.
Nair said there was no such thing as policy decision in criminal law as abuse of public office to receive political donations constitutes corruption.
“The AG’s discretion not to prosecute on policy decisions can be called into question,” he said, adding that the term “policy decision” could be just a smoke screen.
Lawyer N Sivananthan meanwhile said any incumbent AG could review a criminal file and decide whether to press charges even though the offence might have been committed a long time ago.
There was no limitation period for criminal cases as charges could be made if the AG believed there was sufficient evidence and witnesses were available to prove the state’s case, he added.
“However, under Article 145 (3) the AG also has the discretion to institute, conduct or discontinue any criminal case. This power cannot be questioned,” he said.
Sivananthan said the AG was expected to be independent of political influence when making decisions in criminal cases.
“As AG, he is the chief legal adviser to the government but as public prosecutor, he is expected to be neutral,” he said.
Sivananthan said this was why he supported Pakatan Harapan’s pledge in its election manifesto to have different people holding the posts of AG and public prosecutor.
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