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 ©The
Malaysian Insider (Used by permission)
KUALA LUMPUR, July 25 — Should one man be so powerful? That is the crux of a
roiling debate in government over the sole powers given to the attorney-general
under the Federal Constitution to institute and conduct prosecutions in
Malaysia.
The Malaysian Insider has learnt that in May the Cabinet decided that de
facto Law Minister Datuk Zaid Ibrahim and the Attorney-General's Chambers
examine all the powers given to the AG under the Constitution.
The aim of the exercise was to find:
a) A mechanism so that the Anti-Corruption Agency, Securities Commission and
other agencies can decide whether to proceed with the prosecution of a case.
Currently, all these agencies have to refer their files to the AG's Chamber.
b) A mechanism for the AG to explain to the public why decisions were made in
certain cases of public interest.
A government official told The Malaysian Insider that there was a sense
that too much power was vested in one person and that there was a need for more
transparency and checks and balance in the prosecution process.
"The AG in Malaysia is a political appointee, and someone who is privy to
Cabinet deliberations. We need to remove politics from the decision-making on
whether to prosecute a criminal case or not, '' he said.
That was in May, two months after Prime Minister Datuk Seri Abdullah Ahmad
Badawi and the Barisan Nasional were stunned at the polls and a month after he
promised to a slew of reforms.
But like all other moves to reform the judiciary and legal system in the
country, the biggest stumbling blocks to divesting the powers of the AG are
coming from Umno ministers. At a recent meeting, several of them joined forces
with AG Tan Sri Gani Patail to argue in favour of the status quo.
They cautioned Abdullah against allowing the power of prosecution to be given to
a director of public prosecution or allowing the police, ACA to be able to
charge suspects without the consent of the AG. Much of their concern was
anchored on the question of giving up control, thereby raising concerns that
there is interference by politicians in the prosecution of criminal cases.
They argued that there was no need to amend the Constitution because Section 377
(b) enables the AG to delegate his power to prosecute in writing to relevant
agencies.
But lawyers and government officials familiar with the discussions noted that
even after the AG delegates his powers to an agency, the agencies still have to
account to Gani.
A recent decision by the Court of Appeal in the Repco Holdings vs Public
Prosecutor case states that the AG has the sole discretion on whether to
prosecute. In short, any criminal prosecution can only proceed if one man
approves or gives his consent.
Lawyer Roger Tan wrote recently that if government is really serious
about establishing a "full-fledged" Malaysian Commission on Anti-Corruption by
the end of this year, it must rebuild the legal structure of ACA to make it a
totally independent anti-corruption enforcement body.
"It is, therefore, always a danger to vest absolute powers in one person alone.
To this aim, Article 145(3) can be amended to make it clear that it does not
confer upon the attorney-general sole and exclusive power to institute and
conduct prosecutions.
"In so doing, the office of the public prosecutor can be assumed by another
officer independent of the attorney-general, so that day-to-day prosecutions are
personally conducted by the public prosecutor and other statutorily appointed
officers.
"The attorney-general can still have supervisory, but not exclusive, powers over
prosecutions so that he can concentrate on his role, and rightly so, as the
chief legal adviser to the government, '' he said.
Abdullah has not made a decision on whether to proceed to amend the Constitution
and divest powers from the AG, or stick with the status quo.
For now, the establishment forces led by Umno ministers seem to be winning the
debate and resisting any move to make Gani and his successors less powerful.
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Straight thinking, as opposed to crooked or, worse, convoluted thinking, will lead us to the enlightened view that Malaysians deserve the best simply because we are Malaysians. I know that that is a circular argument.
But look, why should the power to prosecute rest on the decision of one man? Is that man infallible? Even if he is, are we Malaysians not putting far too much on his plate?
Power, any power be it social status, economic wealth or high political office, should be used to create the maximum happiness for the greatest number. It should never be used to dominate and coerce our fellow men.
Healthy minds pursue the utilitarian promise. Only sick minds opt for domination and coercion.
Enough said except that when we dig holes, always remember that that very hole may be the one we may lie in.
Stephen Tan Ban Cheng