There is no limitation period for criminal prosecution and Datuk Seri Najib Razak could still be charged if the Malaysian Anti-Corruption Commission (MACC) finds new evidence on the RM2.6 billion donation and Finance Ministry-owned firm SRC International Sdn Bhd, lawyers said.
MACC could still resume its probes into these cases and there was no law preventing it from resubmitting investigation papers to the attorney-general (A-G), who is also the public prosecutor, for his consideration to frame charges against Najib if fresh evidence emerged, lawyer Amer Hamzah Arshad told The Malaysian Insider.
It was within the MACC's powers to decide whether to continue investigations and no one could direct them close their files, Amer added, when asked to comment on A-G Tan Sri Mohamed Apandi Ali's announcement last Tuesday that he would order the anti-graft agency to close investigation papers into Najib over the donation and SRC International.
Amer said there were instances where the Attorney-General’s Chambers initially decided to take no further of action but subsequently decided to charge the suspect on grounds there was new evidence.
Another example, he said was former Internal Security Act detainee Yazid Sufaat and cafeteria worker, Muhammad Hilmi Hasim, who had their earlier charges dropped by A-G due to the emergence of fresh evidence.
"A prosecution witness during cross examination by the defence disapproved the accusations that the two were promoting terrorism and were not members of a terrorist group.
"The defence then wrote to the A-G who dropped the charges. Similarly, the A-G could frame charges if there are new developments," he added.
On Wednesday, Yazid, 52, and Hilmi, 36, were each jailed seven years for withholding information on terrorism activities in 2012 after they pleaded guilty to an alternative charge.
Amer said the MACC in Najib's case had a duty to continue investigations if they found new leads that strengthened their case.
Since there was no time bar on criminal prosecution, the law also did not prevent a new public prosecutor to review the investigation papers, so long as the accused and relevant witnesses were available.
Lawyer Mohamed Hanif Khatri Abdulla said Apandi was wrong to order an investigation agency to close its files and he had acted beyond his authority.
"All Apandi should have stated is that he found insufficient evidence at this point in time to institute proceedings against Najib but has no business to order that there should not be further investigation," the lawyer said.
Hanif said nothing prevented a new A-G to review MACC 's investigation papers and institute criminal proceedings against Najib if there was sufficient evidence.
Lawyers for Liberty executive director Eric Paulsen said Najib's case showed that the the A-G and public prosecutor could not not be the same person.
He said the A-G was the legal advisor of the government and could be a member of the Cabinet.
Paulsen said as public prosecutor, the people must have confidence in the person olding the position to serve public interest.
"There must not be a whiff of controversy or partisanship. The public prosecutor must be seen independent," he added.
Former attorney-general Tan Sri Abu Talib Othman had also said that the A-G's powers under Article 145 (3) of the Federal Constitution was only to institute, conduct and discontinue any criminal proceedings.
On Tuesday, Apandi said he was not pressing any charges against Najib due to insufficient evidence to implicate the prime minister, following close to six months of investigations by the MACC.
But he also ordered the MACC to close three investigation papers; one on the RM2.6 billion donation and two on SRC International which had taken a RM4 billion loan from the Retirement Fund Inc or KWAP.
Apandi also turned down a request by the MACC for mutual legal assistance so that the anti-graft agency could obtain information from overseas banks and financial institutions for its RM2.6 billion probe.
The A-G said there was no need to pursue such assistance from other countries since no evidence of wrong doing was found. – January 31, 2016.
-The Malaysian Insider-