GEORGE TOWN: A lawyer, who acted for the complainant in the trial of former Penang chief minister Lim Guan Eng and businesswoman Phang Li Koon, has rubbished the explanation given by Attorney-General’s Chambers (AGC) with regards to their acquittal.
Gunamalar Joorindanjn also demanded that an inquiry be commissioned immediately to investigate the circumstances that led to the acceptance of the letters of representation by both Phang and Lim.
“In the meantime, we call upon the Attorney General to file a notice of appeal within the stipulated time to give the Court of Appeal an opportunity to review the decision of the honourable judge to order an acquittal, instead of a discharge not amounting to an acquittal, was justified, given the circumstances of the case,” she said in a statement made available to the NSTP.
Gunamalar said on Aug 29, they had written a letter to the AGC requesting that the criminal trials be continued in order to allow the judge to make a decision based on the merits of the case.
She said, in the same letter, they had reminded the AGC about the oft-quoted opinion that “justice should not only be done but should manifestly and undoubtedly be seen to be done“
“Nevertheless, the AG, acting through one of his deputies, Datuk Mohd Masri Daud, accepted the representations made and withdrew the charges for the offences under Section 165 of the Penal Code and Section 23(1) of the Malaysian Anti-Corruption Commission Act 2009.
“It is our considered view that the decision has created an impression that there is an actual or perceived bias in favour of them, especially in favour of Lim.
“It is not disputed that Tommy Thomas, the current AG, has acted for Lim in a different but related proceeding, that is to say, in an application to set aside the leave granted to the former AG Tan Sri Mohamed Apandi Ali, to initiate a contempt proceeding against Lim, for claiming that the said charges were a part of a conspiracy to send him to the prison.
“Also, it is not disputed that Lim was appointed as the Finance Minister by the King on the advice of the Prime Minister during the course of the said criminal trials, and Tommy was also equally appointed as the AG by the King on the advice of the Prime Minister, soon after that,” she added.
She said the declaration made by the Solicitor-Generals, Datuk Engku Nor Faizah Engku Atek and Datin Paduka Zauyah Be T. Loth Khan, in the joint statement was at best ineffectual as it does not guarantee non-interference by Tommy.
She further noted that Article 145(1) of the Federal Constitution provides that the AG shall have the power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for an offence.
Furthermore, Section 376(1) of the Criminal Procedure Code provides that the AG shall be the Public Prosecutor and shall have the control and direction of all criminal prosecutions and proceedings under this Code.
“For all intents and purposes, Tommy was (and still is) the AG and the Public Prosecutor at the time when the decision was made by the AGC to discontinue the criminal trials.
“When a judge recuses himself from presiding over a case to avoid a potential conflict of interest, another judge – who is equal to him – shall replace him to hear the case.
“Nonetheless, in the case of the AG, there is no one who is equal to him and who can effectively replace him. The Solicitor-Generals and all other Deputy Public Prosecutors are his subordinates.
“Therefore, we have reasons to believe, or at least suspect, that the decision of the AGC to enter ‘nolle prosequi’ in this case was not made in good faith,” she stressed.
Gunamalar said to further the argument, focus should be given to the explanation offered by Datuk Mohamad Hanafiah Zakaria, who is the head of the Appellate and Trial Division.