THE talk of the town this Merdeka will likely be the incarceration of former Prime Minister Datuk Seri Najib Razak.
The more optimistic among us may opine that Najib’s jailing is proof of the independence of our democratic institutions.
Perhaps a more cautious interpretation would be: it proves that we are making some level of progress towards truly independent institutions.
Najib can be said to be an enemy of the present powers that be in the executive. Thus, it is hard to unequivocally claim that this is proof that our institutions are 100% independent.
In the long run, said degree of independence could perhaps be a much more important question than whether any one individual is in jail or not.
In the aftermath of Najib’s jailing, a large faction of Umno appears to have unsheathed their knives and seem to be unabashedly calling for open rebellion against the sitting Prime Minister.
This is a fairly unprecedented occurrence. During the big rally that was held soon after the Federal Court’s decision, one senior MP even spoke directly to the matter of independent institutions.
She made the slightly curious claim that every other Prime Minister in the world appoints “his” person to be the Attorney General.
The implication seems to be that an Attorney General should do the bidding of the Prime Minister – and of course, in this case, that bidding should have been to drop the charges against Najib.
Setting aside the politics of the second implication for a while, the anniversary of Malaya’s independence from Britain might be a good time to reflect on the first implication, and what that means for the independence of our institutions.
The question of independence and separation of powers is a major one that involves a great many of our institutions.
Among these, the office of the Attorney General is a somewhat unique one. As the government’s top lawyer, the AG is responsible for a very wide range of legal matters.
Two important categories are: advising and representing the government, and being responsible for all prosecutions.
This introduces a key conflict of interest. In overseeing all prosecutions, the AG thus also ultimately oversees prosecutions against government officials and politicians, all the way up to the Prime Minister who appointed him or her in the first place.
Judging by the tone of the comments of the aforementioned senior MP and the cheers that greeted those comments, it sounds like there are many Malaysian politicians who feel that this system is basically fine, and that whoever wins the post of PM should have full power to indirectly decide who does or doesn’t get prosecuted (this also explains why they feel fresh general elections are necessary to “help” individuals like Najib).
So, how independent can an AG be, if he or she can be removed at any time for prosecuting someone the PM does not want prosecuted (including his or herself)?
How independent is an AG if the decisions she or he makes seems to pivot on the outcome of elections and which politician is in power?
It was quite a bold claim to suggest that this conflict of interest is perfectly normal and is practiced all around the world.
Our legal system is British in origin, so how do they do it over there?
In the UK, prosecutions are done by the Crown Prosecution Service (CPS). The AG of the UK is responsible for overseeing the work of the CPS, but does not have a role in day to day running, and most importantly, cannot influence whether any particular person is prosecuted or not.
Those decisions are made within the CPS itself, and are done so completely independently of the executive.
The reason for this is obvious to most rational and logical thinkers. How can a prosecutor be trusted to prosecute those in power without fear or favour, when said people in power have the full authority to fire said prosecutor? It simply makes no sense.
Every 31st of August, we should always remember the hard work and sacrifices made by our forebearers in the struggle for independence.
That said, as the years and decades go by, there is a good likelihood that the significance of becoming independent from the British may lessen over time.
We should never forget the evils of colonialism, but it is possible that each passing generation may feel more and more that we shouldn’t rest on old laurels and think of how we achieved one level of independence in the 1950’s, and should instead think about how we can become more truly independent in the 2020s.
If we fail to ensure the independence of key institutions like the judiciary, the AG’s office, the Malaysian Anti-Corruption Commission and so on, then our hard-won “independence” may become more and more of a mere facade.
Nathaniel Tan is a strategic communications consultant. He can be reached at nat@engage.my. The views expressed here are solely the writer's own.
