©New Sunday Times
(Used by permission)
by Raja Aziz Addruse and Ding Jo–Ann
THE recent challenge by Datuk Seri Anwar Ibrahim's defence team against the
validity of the Attorney–General's certificate to transfer his sodomy case from
the Sessions Court to the High Court has again highlighted the need to seriously
examine the role of the Attorney–General.
The Attorney–General, it was argued, was not competent to
issue the certificate as a report, which had been made against him for alleged
tampering with evidence in Anwar's first sodomy case in 1988, was still being
investigated.
The Kuala Lumpur Sessions Court ruled last Friday that the certificate was
invalid.
The scope of the Attorney–General's powers in Malaysia has long been a subject
of debate and controversy. He is the chief legal adviser to the government and
is responsible for advising ministers involved in legal proceedings in their
official capacity.
But as public prosecutor, he is also entrusted with power, which he uses at his
discretion, to start, conduct or discontinue any proceedings for an offence,
other than proceedings before a Syariah court, a native court or a
court–martial.
His dual role has posed a real problem. A conflict of
interest is bound to arise if he has to institute criminal proceedings against
members of the government.
The ongoing Altantuya Shaariibuu prosecution, surrounded by rumours involving
important political figures, is a case in point.
Some countries in the Commonwealth, such as Australia and Canada, do not have
such a problem. There the job of reviewing evidence, and beginning and
conducting prosecution of offences, is entrusted to a Director of Public
Prosecutions.
Since he is unencumbered by the sort of duties and functions the
Attorney–General has, he is kept away from direct government influence and is
able to act with impartiality in assessing whether or not to prosecute a case.
His decision is based on whether there is a realistic prospect of conviction on
the evidence available and whether it is in the public interest for the
prosecution to begin.
The Attorney–General in such a system would be a government minister. This would
remove the structural defect in the present Malaysian system which constantly
invites accusations that the Attorney–General is motivated by bias or is being
selective in instituting criminal proceedings.
If he were made a part of the political party in power, the Attorney–General
would not need to pretend to be neutral.
Though not directly involved in deciding whether to institute criminal
prosecutions, he should be responsible for overseeing and superintending the
prosecution services of the country and should answer to Parliament for the
conduct of the Director of Public Prosecutions and of his department.
There is currently no formal mechanism requiring the Attorney–General to account
for his conduct in relation to prosecutions of criminal proceedings. In spite of
the wide powers he wields, he has no duty to report to the prime minister,
cabinet or Parliament.
There has been no call for him to account for the failure of a number of
high–profile prosecutions, which commenced with much fanfare but ended up being
a waste of public funds.
Last year, Tan Sri Eric Chia, the former managing director of Perwaja Steel, was
acquitted after 43 days of trial without his defence being called.
In acquitting the accused, the presiding High Court judge heavily criticised the
conduct of the prosecution, especially their failure to call several key
witnesses who had obvious knowledge of the material elements of the case.
With reference to particular key witnesses from Japan, the judge questioned
whether it was the Japanese witnesses who were "reluctant" to come or "the
prosecution was the one reluctant to bring them here".
The prosecution of Koh Kim Teck, a businessman, and his two bodyguards, who were
charged with murdering 14–year–old Chinese national Xu Jian Huang, and who were
acquitted in 2005, is another case in point.
After a trial lasting 36 days and with 39 prosecution witnesses having given
evidence, the presiding judge found that the prosecution had not brought forward
any evidence which could implicate the accused in the murder and that there had
been no "prima facie" case made out to warrant the defence being called to
answer the charge.
The prosecution had apparently omitted to call material witnesses, including the
investigating officer for the case and Koh's driver who had reportedly given a
cautioned statement that he had seen both bodyguards throw Xu into the swimming
pool where he was eventually found. Two other material witnesses who were
present in the house were also not called.
Yet another was the prosecution for the murder of Noritta Samsudin, where the
accused was acquitted after 29 days of trial. The prosecution appealed against
the acquittal right up to the Federal Court.
In dismissing the appeal, the Federal Court noted that there was a gaping hole
in the prosecution's case, where it failed to sufficiently account for the
likelihood of there being another person present at Noritta Samsudin's
condominium unit who could also have committed the crime. No one else has been
charged for the murder.
Any discussion on expensive and long–running criminal trials would not be
complete without reference to the Irene Fernandez trial which spanned seven
years and took over 300 days to complete.
It is still not over for the Tenaganita director, who was convicted in 2003 of
publishing false news about the ill–treatment of detainees in camps for illegal
immigrants. Her appeal against this conviction to the High Court has been the
subject of numerous delays and has yet to be heard.
The Altantuya Shaariibuu murder trial will also go on record as one of the
longest trials in Malaysian history.
After more than 150 days, Abdul Razak Baginda was acquitted of abetting the
murder and discharged on Oct 31, while the two police officers charged with her
murder have been called to enter their defence.
As it is the taxpayers' funds that ultimately pay for all criminal prosecutions,
they have a vested interest in knowing how such cases, which appear to be
ill–prepared, can be brought to trial.
It is imperative that the Attorney General's wide powers be subject to close
scrutiny and not be permitted to be exercised arbitrarily.
If the government is truly serious in wanting to improve and restore public
confidence in the administration of justice in this country, it must be prepared
to review the presently unfettered powers of the Attorney–General.
Raja Aziz Addruse is a former Bar Council president and former president
of the National Human Rights Society (Hakam). Ding Jo–Ann is a Kuala
Lumpur–based lawyer.