AG can bring charges even if DPP recommends otherwise, says ex-DPP

A former DPP tells FMT it is up to the attorney-general to decide whether to file charges, following a purported leaked internal memo from a prosecutor suggesting that the AGC drop a 1MDB case involving Najib Razak.

(FMT) – The Attorney-General (AG) may bring a criminal case against an accused person even if a deputy public prosecutor (DPP) suggests it is unlikely to succeed, a former DPP said.

“A recommendation by a DPP is not final and conclusive. In public interest cases, the final call is usually made by the AG, who is the public prosecutor,” the former DPP, speaking on condition of anonymity, told FMT.

He said this in response to a purported leaked internal memo to then AG Tommy Thomas by the lead prosecutor in the case, Jamil Airpin, in September 2019 suggesting that the attorney-general’s chambers (AGC) drop a 1MDB case involving former prime minister Najib Razak.

The alleged 12-page memo said an evaluation found that the available evidence in the case was “grossly insufficient to prove a prima facie case for the six charges, let alone secure a conviction beyond reasonable doubt”.

In October 2018, Najib and former Treasury secretary-general Irwan Serigar Abdullah were charged with six counts of criminal breach of trust involving RM6.6 billion worth of government funds, which allegedly include payments to Abu Dhabi-owned International Petroleum Investment Company (IPIC).

The AGC has since said it is investigating the leak of the document but did not confirm its authenticity.

Meanwhile, lawyer Rafique Rashid Ali pointed out that former AG Apandi Ali had in early 2016 “cleared” Najib of any criminal wrongdoing in the SRC International and 1MDB cases.

However, further investigations were conducted into both matters in 2018, and Najib was then charged with seven counts of criminal breach of trust, abuse of power and money laundering.

He noted that the High Court’s conviction and sentencing of Najib in the SRC International case was affirmed by the Court of Appeal and Federal Court. Najib’s review application was also dismissed.

“The evidence was tested in a court of law and a total of nine judges were convinced that Najib was guilty of the offences,” said Rafique.

Separately, Najib’s trial for 25 counts of money laundering and abuse of power over the alleged misuse of 1MDB funds amounting to RM2.28 billion is still at the prosecution stage.

Meanwhile, the prosecution will report to High Court judge Jamil Hussin on Sept 12 whether the AGC has accepted representations filed by Najib and Irwan asking for the charges in the IPIC case to be dropped.

Deputy public prosecutor Saifuddin Hashim Musaimi told the High Court on Aug 9 that they had received Najib’s representations in early August and that Irwan had filed his much earlier.