KUALA LUMPUR (Jan 28): Attorney-General (A-G) Tan Sri Mohamed Apandi Ali has no authority to order the Malaysian Anti-Corruption Commission (MACC) to close investigations into the RM2.6 billion donation in the prime minister's bank accounts, says a former A-G.

Tan Sri Abu Talib Othman also said that Apandi had not helped MACC to obtain documents and statements from abroad as part of its probe, under the mutual legal assistance (MLA) initiative.

"Under Article 145 (3) of the Federal Constitution, the A-G has power only to institute, conduct and discontinue any (criminal) proceedings, but has no authority to order any investigation agency to close its investigation papers.

"This is a case of public importance that has attracted worldwide attention, the A-G must help the MACC to collect evidence as the source of the fund is outside Malaysia," Abu Talib told The Malaysian Insider

He was responding to Apandi's statement on Tuesday that Najib had not committed any criminal offence over the donation and the Finance Ministry-owned SRC International Sdn Bhd, and that there was “insufficient evidence” to file charges against the prime minister.

Ideally, said Abu Talib, the A-G should allow MACC to complete the probe and render whatever assistance needed, as the source of the fund was outside Malaysia.

"Whether to institute prosecution is to be decided after the probe," said the 77-year-old Abu Talib.

He said Malaysia practised a check and balance system in the administration of justice.

"Investigation powers like that of MACC were entirely vested with them. Prosecution is based on available evidence and if there was one, it is the duty of the public prosecutor to institute a charge against an accused person.

"It is the duty of the court to determine whether one is guilty of a crime," he added.

On Dec 31, MACC deputy commissioner Datuk Seri Mohd Shukri Abdull said the body had yet to complete the RM2.6 billion probe and needed to obtain documents and statements involving several financial institutions overseas.

“These documents and statements can only be taken through mutual legal assistance (MLA), as they are tied to the banking laws of the countries involved,” Shukri had said in a statement soon after MACC passed investigation papers to Apandi.

But Apandi on Tuesday said there was no need for Malaysia to seek legal assistance from any other country in order to investigate the funds, because he found that no offence had been committed.

"I will return the relevant investigation papers to MACC with the instruction to close three investigations papers," the A-G had said.

Minister in the Prime Minister's Department Datuk Seri Azalina Othman Said yesterday said no one could challenge the A-G's decision for not charging Najib of any wrongdoing in the RM2.6 billion donation and SRC probes.

Azalina, a lawyer, said the law gave the A-G ultimate discretion on whether to pursue a case in court, and as such Malaysians should stop debating the case further.

"The discretionary powers given to the A-G under Article 145(3) is final, it cannot be challenged or replaced by any other powers including the court," she said in a statement.

Former prime minister Tun Dr Mahathir Mohamad had accused Apandi of playing the roles of judge and prosecutor.

"That decision is in fact a judgment. The A-G is both judge and prosecutor. That in itself is an injustice," Dr Mahathir had said.