Power of the Attorney General


  • Letters
  • Wednesday, 20 May 2020

THE recent court proceedings on a discharge not amounting to an acquittal (DNAA) on a money laundering charge has all the elements of a Shakespearean drama with statements, rebuttals, denials and subsequent clarifications. Some people are "confused".

The Malaysian Constitution offers clarity on issues relating to the law. As contained in the Constitution, the Attorney General (AG) has a dual role as the public prosecutor and legal adviser to the government.

Many jurisdictions have appreciated the potential for inherent conflict between these two roles and had them separated. In Malaysia, it is status quo. Some exhortations have been made on a separation of roles, but it appears not to have gained the required momentum to effect change.

Not many realise the fact that the AG has absolute discretion on preferring charges in a court of law. According to current provisions, he enjoys unquestionable authority and is not obliged to offer any reasons for the decisions, to prosecute or not, that he has made or will make.

This was made crystal clear during a meeting I attended as an independent oversight panel member of the Malaysian Anti-Corruption Commission (MACC) with a sitting AG on discretionary powers on prosecutions.

The rationale for this is that such "independence" is required so that pressure cannot be exerted by any parties for the office to show partiality in any case brought before it. Given the altruistic nature required for one to assume this office, the selection of an AG is critical.

It is the King who appoints the AG. If a shortlist is provided, the King can make a choice. If only one name is provided, the ruler is obliged to appoint the said person.

As the recommendation on the appointment of the AG is made by the prime minister (PM), it then begs the question of whether such an appointment to a position which is so "powerful" is political or otherwise!

The resignation of the immediate past AG of his own accord pursuant to the resignation of the immediate past prime minister would lead one to the highly logical deduction that the post has elements of a "political appointment". This appears to be a compromise on the independence factor so highly valued for the post.

Is the post truly "independent" given that the AG is also the legal advisor to the ruling government?

In a current high-profile case on money laundering, attention is drawn to a minute which lends credence to a statement by the current AG that he was merely following through on something which had been accepted "in principle" by his predecessor. This is now the subject of contention.

The recently resigned AG has raised a valid point on him losing credibility if he had approved it, as he would have betrayed both the trust of the then PM and the Pakatan Harapan government. It cannot be denied that he was the PM’s "choice".

So whom does the office serve – the public or executive - in its dual role? This is critical when there is a divergence of views especially when what is good for the goose may not necessarily be good for the gander!

In matters relating to perceived corruption, which includes abuse of power, surprises never cease. The case against a chief minister on alleged purchase of property below market value never saw the light of day pursuant to a change in government. The immediate past AG, who had his own legal practice prior to his appointment, rightly discharged himself from this case due to prior acquaintances with the parties involved.

The court had granted an acquittal as opposed to a DNAA which the prosecution had requested for.

If the court had erred, an appeal is warranted. The acquittal was not appealed. No one can question this as, again, the decision to appeal or not lies solely with the AG’s Chambers.

The MACC chief commissioner had expressed shock and the reaction of the immediate past PM, along a similar vein, is also on record. Why such reactions?

The question of whether there was any tinge of corruption will never be answered. There is always the niggling possibility, even though it is water under the bridge, of whether a change in government can have an effect on decisions of the AG’s Chambers.

Rightly, it should not be so given the separation of powers doctrine. Irrespective of the government in power, justice should not be compromised. What is right is right and what is wrong is wrong in the eyes of the law.

The judicial system should not be used to settle old scores by throwing the book at certain parties and tying them up in court. This is abuse of the highest order and should not be tolerated.

Perpetrators of crimes against the state and society have to face the full brunt of the law. There should not be loopholes that can be exploited due to changes in the executive branch.

Thought leaders and professionals in the judiciary and legal fraternity should rightly focus on driving the required changes to address such possible conflicts of interest. Ignoring it may result in the common man adopting a sceptical or cynical view on the rule of law.

WALTER SANDOSAM

Kuala Lumpur

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