Did Tommy Thomas agree in 'principle' and if not, who advised our AG that he did?

"Once (the) AG has made a statement, that is the end of the matter," said Datuk Seri Gopal Sri Ram in a text message to The Star today.

No disrespect to the former Federal Court judge but I disagree with his statement. It is not the end of the matter. In fact, I would go further to suggest that the recent statement made by Tan Sri Dato’ Idrus Harun has only raised more unanswered questions, which I feel members of the public such as myself have every right to ask.

Before we begin, I will just clarify that I am not questioning the integrity of Tan Sri Tommy Thomas or Tan Sri Dato’ Idrus Harun.

However, just like the majority of Malaysians that have woken up today to yet another ‘plot twist’ in the case surrounding Najib Razak’s stepson, Riza Shahriz Abdul Aziz, I am left befuddled at how messy the whole situation has become with the various contradictory and confusing statements that have been issued thus far.

To understand the confusion and lack of understanding that the public has about the matter, look no further than the worryingly inaccurate statements made by our former Prime Minister, Tun Dr. Mahathir Mohamad:

“I am not questioning the judge’s decision, definitely it follows the law, but I am concerned because there are many more thieves in this country of ours, if we hold on to this principle, thieves will get away.”

“I’m afraid that if I speak like this, I will be cited for contempt of court, brought to court. I apologise, I apologise to the judges, it is not my intention to criticise judges, if it is in the law that it was done so, that is how it is, that’s all that I can say.”

The statements made by Tun Dr Mahathir Mohamad is extremely disconcerting for a lawyer such as myself to read especially if it is reflective of how the public feels in general about the whole situation.

As such, before I go any further, it would be helpful for me to clarify that the Court did not have a role in the conditional discharge of Riza Shahriz, other than to officially record such a decision and to issue the appropriate order. I refer to Section 254 of the Criminal Procedure Code:

1. At any stage of any trial, before the delivery of judgment, the Public Prosecutor may, if he thinks fit, inform the Court that he will not further prosecute the accused upon the charge and thereupon all proceedings on the charge against the accused shall be stayed and the accused shall be discharged of and from the same.

2. At any stage of any trial before a Sessions Court or a Magistrate's Court before the delivery of judgment, the officer conducting the prosecution may, if he thinks fit, inform the Court that he does not propose further to prosecute the accused upon the charge, and thereupon all proceedings on the charge against the accused may be stayed by leave of the Court and, if so stayed, the accused shall be discharged of and from the same.

3. Such discharge shall not amount to an acquittal unless the Court so directs."

Whether the prosecution wishes to discontinue with a criminal proceeding or not is a decision that they are entitled to make because they are the ones that are bringing the case against the accused person on behalf of the state. MACC also had no role in this other than to perform investigations, facilitate communication with Riza’s lawyers and to make the public announcement that was later disputed by Tan Sri Tommy Thomas.

The problem that currently arises concerning Riza Shahriz’s case is not about the prosecution’s right to make the decision, but rather the legitimacy of the process that led to it. This is the matter that I find extremely concerning in light of the contradictory statements made by the MACC, the former Attorney General and the current Attorney General.

I will go straight to the heart of the problem by first comparing these statements and leaving them here word for word, so you can make your own judgment as well.

The current Attorney General, Tan Sri Dato’ Idrus Harun had written the following:

• "Saya telah dinasihatkan bahawa Thomas - setelah meneliti surat representasi itu melalui satu minit bertarikh 19 Nov 2019 - memohon pandangan daripada Timbalan Pendakwa Raya Kanan Gopal Sri Ram, dan turut menyatakan berdasarkan cadangan-cadangan yang dinyatakan di atas, bersedia untuk memberi pertimbangan kepada representasi tersebut.

• "Saya juga dinasihatkan bahawa Thomas telah secara prinsip bersetuju dengan cadangan tersebut."

• "Perkara ini telah dibentangkan kepada saya setelah saya dimaklumkan tentang pendirian terdahulu Tan Sri Thomas. Setelah ditaklimatkan oleh Timbalan-Timbalan Pendakwa Raya yang mengendalikan perkara ini, saya bersependapat dengan pandangan mantan Peguam Negara sebagaimana yang telah ditaklimatkan kepada saya, dan telah bersetuju untuk menerima tawaran Raja Aziz tertakluk kepada pematuhan yang ketat terhadap semua terma dan syarat."

Translated version by the Edge Markets:

• “I have been advised that my predecessor Tan Sri Tommy Thomas, after perusing the said letter of representation, via a minute dated Nov 19, 2019 to Senior Deputy Public Prosecutor Datuk Seri Gopal Sri Ram, sought the views of the latter, and further stated that in light of the proposals outlined above, he is prepared to consider the representation.
  

• “I have also been advised that Thomas had agreed to the suggestion in principle. This paved the way for further negotiations and planning of the mechanism to be adopted, to take place."

• “Having been briefed by the DPP in charge of the matter, I shared the views of my predecessor as had been informed to me, and agreed to accept the offer that was made by Riza Aziz subject to his strict compliance with the terms and conditions.”

Contrast this with the statements made by the former Attorney General, Tan Sri Tommy Thomas:

• “The only other decision I took in the case against Riza was to appoint Gopal Sri Ram to lead the prosecution.  Thereafter I left the day to day handling of the case to him and the Deputy Public Prosecutor (“DPP”) from Attorney General’s Chambers (“AGC”) assisting Sri Ram.”

• “… Hence, there was nothing sinister about the sending of representations by Riza’s solicitors. Whether I personally acted in agreeing to their request for a discharge is an altogether separate issue. I did not. It is as plain and simple as that.”

• “This letter was passed to Gopal Sri Ram to study and to recommend a response to me.”

• “On 28th February 2020, I resigned as Attorney General.”

• “Until my resignation, I had not received any advice from Sri Ram. Thus, I did not decide on the representations of Riza prior to my resignation.”

The discrepancy that exists between these two statements are important because Tan Sri Dato’ Idrus Harun’s decision as admitted by him is partly influenced by his belief that Tan Sri Tommy Thomas had agreed in ‘principle’ to the initial representation that was sent by Riza’s lawyers on the 18th of November 2019.

If the belief held by Tan Sri Dato’ Idrus Harun is untrue then the validity of his decision comes into question. He is of course entitled to make such a decision but if his reasoning behind it is influenced by something inaccurate then it is a matter of concern.

Tan Sri Tommy Thomas in his statement made it explicitly clear that he did not agree to accept the representation whether in 'principle' or not. Assuming this is true, an important question we must now ask is who advised Tan Sri Dato' Idrus Harun that Tan Sri Tommy Thomas agreed in 'principle' and why was this inaccurate advice given to our Attorney General? Was it motivated by an ulterior purpose or was it simply miscommunication?

Perhaps the main cause of all this was simply because of a cursory reading of the alleged minute that was sent to Datuk Seri Gopal Sri Ram by Tan Sri Tommy Thomas. Tan Sri Tommy Thomas’ words in the minute about ‘preparing to consider the representation’ could have been misconstrued into meaning that he was prepared to accept it. Without any access to this particular minute, we are left to speculate about the actual cause of this apparent miscommunication.

Some might take a step further and suggest that both Tan Sri Tommy Thomas and Tan Sri Idrus Harun have been telling the truth and there was instead a third party that had seized the opportunity that arose from Tan Sri Tommy Thomas’s resignation to engineer the conditional discharge of Riza Shahriz by falsely communicating information to the relevant parties. I would caution against believing this speculation without further proof but I won’t deny that the whole situation does not add up in certain aspects.

Regardless, the whole situation has disappointedly led to an erosion of public trust towards our criminal justice system. Unfortunately, our system hinges upon such trust and I do not fault the public for questioning how they can trust a system that is unable to provide a clear and consistent explanation about the decision made in an important case involving public interest.

Miscommunication should have been avoided at all cost. Rather than issuing contradictory statements to the media, it would have been preferable for our former and current Attorney General to have a conversation with each other to clarify the situation. This would have avoided the current mess that we find ourselves in due to their differing accounts of what had actually led to the conditional discharge of Riza Shahriz.

One thing remains for certain regardless of whether the matter truly ends with Tan Sri Dato’ Idrus Harun’s statement or not. It is that the role of the Attorney General should be kept separate from that of the Public Prosecutor.

It is a move that is long overdue and we should not forget the actions of our former Attorney General, Tan Sri Mohamed Apandi Ali in dismissing the charges against Najib Razak in 2016.

Delaying such reforms would be akin to inviting history to repeat itself.

Picture by Miera Zulyana