July 22, 2015
COMMENT: I have been following and writing about the plight of my good friends, Dato Ramli Yusoff and Lawyer Rosli Dahlan over a number of years. I continue to be critical about the MACC Chief Commissioner, and the Attorney-General and former Inspector-General of Police (IGP) and the present IGP.
My view is that they all have acted with impunity and must face the consequences of their actions against Dato’ Ramli and Lawyer Rosli. It is now in the hands of the presiding Judge to decide and deliver the verdict based on all evidence before him. I am convinced that justice will prevail in the end. These public officials deserve whatever is due to them for failing to do their duty with due diligence and high sense of responsibility. The Attorney-General can tell the Martians that “All actions thereon were taken against the plaintiff (Rosli) premised on and in accordance with the law”. –Din Merican
Attorney-General Gani Patail : No Malice in Lawyer Rosli’s prosecution
by FMT Reporters
Attorney-General Gani Patail claims had ‘reasonable and probable cause’ to pursue criminal action, but observers are unconvinced.
Lawyer Rosli Dahlan
Attorney-General Abdul Gani Patail and his ten co-defendants have labelled as a “misconception” the facts which senior lawyer Rosli Dahlan set out in his statement of claim which the latter says amounted to abuse of power, malicious prosecution and a conspiracy between Gani, former Inspector-General of Police Musa Hassan, current Malaysian Anti-Corruption Commission (MACC) Chief Commissioner Abu Kassim Mohamed and several other Police and MACC officers.
In a joint statement of defence dated July 10 filed in court by the Attorney-General’s Chambers in response to Rosli’s statement of claim, the defendants had claimed that all facts, inferences and implications pleaded by Rosli in his statement of claim could not amount to any cause of action entitling him to bring the lawsuit against them.
“The onus is on the plaintiff to plead clearly a complete cause of action, not merely hurl accusations without basis,” the defence states. “The plaintiff is put to strict proof of each of his allegations.”
Gani and his co-defendants also claim that they had “reasonable and probable cause” to pursue criminal action against Rosli as they believed him to be an associate of Ramli. They added that the two notices to Rosli had been validly issued by the MACC under section 32(1)(b) of the Anti-Corruption Act 1997 and that the practising lawyer had failed to comply with the said notices.
“MACC has evidence and proof that show that the plaintiff had a good relationship with Ramli and that he had acted for Ramli in several transactions involving property and companies which Ramli is believed to have owned,” the defence states.
“MACC, therefore, has reasonable cause and evidence to believe that Ramli was involved in corrupt activities and was liable to be investigated under the Anti-Corruption Act 1997.
“All actions thereon were taken against the plaintiff (Rosli) premised on and in accordance with the law,” the defence reads further.
Gani also claims in the defence that the pursuit of Rosli’s prosecution and appeals against the decisions of the courts in respect thereof were entirely matters within his discretion in his capacity as public prosecutor of the federation pursuant to Article 145(3) of the Federal Constitution and that the discretion was exercised after giving due consideration to public policy and were based on the outcome of investigations which had been conducted.
“All actions were taken in good faith and without malice,” he pleads.
Other points raised by the defendants in their defence include that the current action was duplicitous given that it was largely similar to a parallel case presently on-going before Justice Su Geok Yiam in another High Court.
The defendants also claim that the plaintiff is time-barred from bringing the action by reason of the provisions of the Public Authorities Protection Act, 1948. Section 2 of the Act provides that all actions must be commenced within thirty-six months of the accrual of the cause of action.
Observers following both this and the parallel case, however, have expressed surprise and reservations as to the contents of the defence put forward.
They note that a large portion of Rosli’s statement of claim narrates facts and findings which have either already been determined by the criminal courts which heard the prosecution’s case against both Ramli and Rosli or which have already been the subject of much of the testimony already adduced in the parallel case.
In particular, they told FMT that in the criminal case against Rosli, Sessions Court judge Abu Bakar Katar had in his decision delivered on December 20, 2010 found that the prosecution in the case before him had failed to disclose that Rosli was Ramli’s associate. He also said that the notices were issued without basis and that the prosecution had failed to prove that Rosli had intentionally neglected to respond to them.
Apart from that, they say that Utusan Malaysia and the Star have already issued admissions and apologies to Rosli, while the New Straits Times and MACC itself have been found liable to him for defamation and were ordered to pay him RM300,000 in damages, both arising from the publication of matters which are at the heart of the case.
They also suggest that Gani and his co-defendants have put up what is largely a ‘bare denial’ defence, i.e. a defence which merely seeks to put Rosli to strict proof of his averments without offering an alternative version of the events which transpired.
In addition to that, the parallel case has already seen former MACC prosecutor Kevin Anthony Morais admit as untrue allegations that Rosli had acted as Ramli’s lawyer in property transactions.
The defence of limitation raised by the defendants also appears likely to fail as the very same arguments have already been canvassed and were rejected by the Court of Appeal, although an application for leave to appeal to the Federal Court on that decision is pending.
Finally and probably most startlingly, the suggestion that the defendants had reasonable and probable cause to pursue Rosli’s criminal prosecution appears to fly in the face of evidence already given in the parallel case, although no decision has been rendered on it as yet.
Under rules of procedure, Rosli is entitled to file a reply to the defence within fourteen days of service. Thereafter, Justice Vazeer Alam Mydin Meera is expected to issue directions at case management which will lead to the matter coming up for trial.
Gani and his fellow defendants had delayed for some eighteen months in the filing of their defence to the case, much to Rosli’s despair and annoyance.
On May 28, High Court Judge Vazeer Alam Mydin Meera instructed Gani and his co-defendants to file their defence within 30 days. It is understood that the deadline was extended upon requests by Cecil Abraham, who acts as lead counsel for Gani and his co-defendants.
Vazeer will preside over the next case management of the case on July 29.