Transmenu powered by JoomlArt.com - Mambo Joomla Professional Templates Club

©The Sun (Letters Section) (Used by permission)
Param Cumaraswamy
(Former UN Special Rapporteur on the Independence of Judges & Lawyers), Kuala Lumpur

IT WAS reported that the Anti-Corruption Agency (ACA) would be investigating the allegations against the Attorney-General (A-G) and the Inspector-General of Police contained in the police report lodged by Datuk Seri Anwar Ibrahim on July 1. With the present law on the investigations of crime including corrupt practices can the ACA impartially and effectively investigate in particular the A-G?

The ACA’s power of investigation into Anwar’s police report would be limited to ascertaining whether there was an abuse of power by either or both of these senior officers now in leadership positions with regard to the events over the physical assault on Anwar when detained in Bukit Aman on Sept 20, 1999.

The ACA was reported to have said that Anwar’s report would be investigated under Section 15 of the Anti-Corruption Act 1997. A more appropriate section would be s.2(1) of the Emergency (Essential Powers) Ordinance 1970. Abuse of power falls under this section in the ordinance as a corrupt practice.

Anwar Ibrahim was charged under this section in his first trial for alleged interference with police investigations. This ordinance is still in force. When the power to investigate and prosecute under the ordinance or for that matter under the ACA are subject to the order, direction and or consent of the public prosecutor which office is headed by the A-G, how could the investigations be seen impartial and effective? Would the A-G delegate these powers to his subordinate to act independently and courageously?

Even then would his subordinate act without fear or favour against his or her superior?

This is a dilemma for the ACA. It certainly is not in an enviable position. Even if it decides, for good reason, there was no offence committed, that decision will be viewed suspiciously by the general public.

This situation justifies the need to legislate for the appointment of a special prosecutor to investigate and prosecute in such circumstances. If need be, the Constitution should be amended to provide for such an appointment in accordance with principles of good governance and accountability in public administration.

In this regard, as I said previously in an earlier statement on April 21, Article 145 of the Constitution relating to the office of the A-G and his powers must be reviewed and amended to make his office accountable.

As one judge said in a judgment in 1999 “the Public Prosecutor (that is, the A-G) has more control over life, liberty and reputation than any other individual in Malaysia, legally speaking of course”.

With regard to decisions on investigations whether to prosecute or not to prosecute, it may be desirable to leave it in a separate office of a Director of Public Prosecutions established by legislation.

Comments (0)

Subscribe to this comment's feed