©New
Sunday Times (Used by permission)
by
V. Anbalagan
KUALA LUMPUR: A retired senior Anti–Corruption Agency (ACA) officer has
suggested that the position of the attorney–general and the public prosecutor be
held by different persons to prevent conflict of interest.
Mohamad Ramli Abdul Manan, now a lawyer, said the A–G only performed a constitutional role as legal adviser to the government.
He said the public prosecutor, meanwhile, directed and controlled criminal
prosecution and proceedings under the Criminal Procedure Code (CPC) and other
laws.
Currently, the A–G is also the public prosecutor.
"The A–G would obviously not be effective as a public prosecutor if he has to
make decisions against cabinet ministers and their party colleagues," he said in
a letter to de facto law minister Datuk Zaid Ibrahim last week.
Mohamad Ramli said while the government introduced reforms in
the judiciary and the ACA, it must also include changes to the public
prosecution system.
A copy of his letter was sent to the Bar Council.
Council chairman, Datuk Ambiga Sreenevasan, said the subject was discussed at
their monthly meeting yesterday and in principle, agreed with the proposal.
"The position of public prosecutor should be separate from the A–G to avoid any
potential of conflict."
Ambiga said the council would study the letter and prepare a memorandum and
other related matters to be forwarded to the authorities.
Mohamad Ramli also recommended that the CPC and the Interpretation Act be
amended so that a more effective public prosecution system could be put in place
with the appointment of a full–fledged public prosecutor.
He suggested that a minister be appointed A–G while the current head of the
prosecution division in the A–G's Chambers be made the public prosecutor with
the rank equivalent to the solicitor–general.
He said since 1902, the power to institute and conduct criminal proceedings was
given to the public prosecutor, deputy public prosecutors and other enforcement
agencies while the A–G was conferred similar powers under Article 145 (3) of the
Federal Constitution since 1957.
He said the notion that only the A–G had the discretion in initiating
prosecution based on the article was an erroneous understanding of the criminal
justice system and rendered the CPC inoperative.
He said a misinterpretation of Article 145(3) after a 1997 court ruling now
prevented public statutory bodies like the Employees Provident Fund, Securities
Commission, Road Transport Department and local authorities to bring criminal
charges against violators without permission of the A–G.
Ramli said the A–G was only given discretionary powers under the constitution
for him to interfere and see that justice was done.
"The Reid Constitutional Commission conferred discretionary powers with the
intention of providing check and balance in public prosecution," he said.
Meanwhile, Bar Council member Edmond Bon said, in Britain the A–G was a
political appointee whose primary role was adviser to the government.
He said there existed the office of Crown Prosecution Service, which was headed
by the director of public prosecution.
"The A–G in Britain only has residual power and interferes in criminal
prosecution in exceptional cases in the public interest."