|
 ©Malaysiakini
(Used by permission)
by Andrew Ong and Fauwaz Abdul Aziz
• Q&A: We're gov't advisors, not
supporters
Attorney-General Abdul Gani Patail has been criticised by a former colleague for
'taking risks' in prosecuting cases where he was not 90 percent sure of
obtaining a conviction.
Abdul Gani (left) reportedly said that “calculated risks” must be taken to avoid
public perception that the AG's Chambers was attempting to cover up certain
matters.
But according to Human Rights Commission (Suhakam) chairperson Abu Talib Othman,
who was AG from 1980 to 1993, he had introduced the '90 percent rule' during his
13-year tenure and that cases should not be brought to court unless the criteria
was met.
“It’s a matter of whether you have evidence. You only prosecute a person if the
person clearly committed a criminal offence. What the public perceives and wants
are not relevant.
“There is public interest. There must also be the interest of the accused. It’s
not fair that you prosecute me just because the public thinks I”m guilty. Then
what is the purpose of having a court?
“It would be a dangerous trend if the prosecution is based on what the public
and politicians want. I have not done it,” he told malaysiakini during an
exclusive interview on Tuesday.
A case in point, said Abu Talib, was the trial and subsequent murder conviction
of Umno politician and former youth and sports minister Mokhtar Hashim in 1983.
“Do you think the government was happy when I prosecuted a minister for murder?
I went through with it. It was tricky and difficult so I prosecuted the case
myself. I would not ask my deputies to do it,” he added.
Jury still out on cyber DPPs
Abu Talib also said that the jury was still out on the attorney-general's recent
directive to deputy public prosecutors (DPPs) compelling them to publish case
reports on the Internet.
Abdul Gani argued that the move would make the AG's Chambers more transparent
and accountable as prosecutors would have to explain themselves should they lose
a case due to prosecutorial error.
Since last month, government lawyers have been publishing the case reports
online. This is part of efforts undertaken to allay fears over perceived
mishandling of cases.
Commenting on this, Abu Talib said it is till too early to tell if the ‘cyber
DPP’ directive will make an impact.
“Give him (Abdul Gani) a chance to implement his policies and let's see if that
is a way of enhancing the performance in the chambers."
However, Abu Talib cautioned that similar ideas undertaken by other government
departments have made little headway.
“Most government websites go 'kaput' halfway. But, let's give him a chance,” he
said, adding that the move might also prove to be an added burden for
prosecution officers as they are expected to file web reports at 4pm on the
conclusion of cases.
Fate of IPCMC?
To a question on police matters, Abu Talib said Suhakam was receiving less
reports on police abuse but an increasing number of complaints were on alleged
police inaction.
“We have acted on it. (For example in) custodial death (incidents), we have
taken a stand where we would hold a inquiry if they don’t initiate an inquest.
But when they hold an inquest, there is a question of dates by the court. The
court (could) postpone a case indefinitely,” he said.
Abu Talib, however, refused to be drawn into speculating why the establishment
of the much-touted Independent Police Complaints and Misconduct Commission (IPCMC)
was still pending.
“We have urged that the IPCMC be established. But the reply we always get is
that it is still with the AG. I guess it must be very difficult to come out with
it,” he said with a tinge of sarcasm.
On the upcoming Ikatan RELAwan Rakyat (Rela) bill, Abu Talib said Suhakam has
held dialogues with the controversial volunteer corp, who’s members are often
accused of being perpetrators of human rights violations.
“We can only advise them. If they accept our advise, then it's good. If they
don’t accept our advice, we have discharged our function in promoting the
protection of human rights.
“The response was very good. But so far, there is no more (reported cases) of
(beatings) by Rela (members),” he said.
The Rela bill, expected to be tabled during the next Parliamentary session which
convenes on Monday, would seek to make the volunteer corp a full-fledged
government department.
Q&A: We're gov't advisors, not
supporters
The attorney-general, or civil servants in general, must
not be automatically construed as supporters of the government of the day,
said Human Rights Commission (Suhakam) chairperson Abu Talib Othman.
Abu Talib, who served as attorney-general from 1981 to
1993, said this when asked if the AG's Chambers was under pressure from the
Prime Minister’s Department which it reports to.
Below is the second of a three-part excerpt of the exclusive interview with
malaysiakini.
 Malaysiakini: There are criticisms on bad
prosecution and police investigation process allowing many cases to be
thrown out. Your views?
Abu Talib: Maybe there are
more problems now since when I was the AG. Maybe it’s because they have more
officers now. They have two solicitor-generals which we never had before.
Now the AG has announced about the website. Maybe it’s a way forward.
(On Aug 19, Attorney-General Abdul Gani Patail announced that public
prosecutors would post short reports of cases won or lost on the AG
Chambers’ website).
But at the end of the day, people wants results. We want good prosecution
(work). We want a fair prosecution. We don’t accept when he (Abdul Gani)
said there are certain cases where he takes risks. To me, we take risk in
amounts in prosecution. How can one go to court and hope for a 50-50 (chance
of winning).
During my time, I introduced a 90-percent rule, which it would appear from
his (Abdul Gani’s) last (interview with the New Straits Times) that
he still adopts this. So I think I’m right in introducing the rule. But
towards the end (of the interview), he said that there are certain cases
where he takes risks. I don’t think (this is right).
His argument was that there are certain cases
where the public would want the prosecution to act.
It doesn’t matter. It doesn’t matter who wants it. It’s a
matter of whether you have evidence. You only prosecute a person if the
person clearly committed a criminal offence. What the public perceive and
want are not relevant.
Don’t you think that there is public
perception that certain cases are not being pursued because...
Then where is the question of the interest of the accused? There is public
interest. There must also be the interest of the accused. It’s not fair that
you prosecute me just because the public thinks I”m guilty. Then what is the
purpose of having a court?
It would be a dangerous trend if the prosecution is based on what the public
and the politicians want. I have not done it. Do you think the government
was happy when I prosecuted a minister for murder? I went through with it
because I decided that in cases of such public importance, it was tricky and
difficult, I prosecuted it myself. I would not ask my deputies to do it.
But do you accept the fact that there
are pressures from the government since the AG's Chambers is directly under
the PM?
I don’t think so. If you are an AG or a civil servant you must become an
advisor. An advisor is not a supporter. So, where it is wrong, you correct
it. I was a civil servant. During my time you see many things happen.
Do you think that the AG should report
directly to Parliament instead of the Prime Minister’s Department?
That is a matter of policy. Even if the AG does not answer to Parliament,
Parliament can still raise questions. The minister concerned will then have
to answer the questions.
The AG is responsible to a minister administratively, not in the exercising
of his power as a public prosecutor. Such powers are vested in him and he
exercises the powers at his absolute discretion.
Is the (present AG’s) website idea do-able?
Give him a chance to implement his policies and let's see if that is a way
of enhancing the performance in the chambers. Most government websites go
'kaput' halfway. But let's give him a chance.
But I think this is an added responsibility on the officers. To prosecute
for one whole day in court can be very tedious and one has to come back
tomorrow before the courts.
It would be okay if the court says (be present by) 9am
and the court sits by 9am. In most cases, the courts don’t sit at 9am.
There was an occasion, where the court asked us to appear at 9.30am. I
appeared at 9am. The judges did come out at 9.30am. I told the court
(officers) to tell the judges ‘We’re all ready to commence!’.
I was happy to see them came out. They were unhappy, but
I think they are reasonable people. While they expect us to be punctual,
they should reciprocate that courtesy.
Suhakam has given a lot of input on the IPCMC
(Independent Police Complaints and Misconduct Commission) to the AG's
Chambers, to assist the police reform process...
We submitted our memorandum (to the prime minister) and made several
recommendations. One of which was the setting up of the IPCMC.
Secondly was amendments to remand procedures. We also
recommended that the courts examine such applications carefully. There
should be reasonable grounds before they grant a detention under Section 117
of the Penal Code, not at the asking of the police.
But the IPCMC...
I believe the prime minister announced that it would be implemented and (the
bill) is with the AG now. You can ask the AG, 'what happened?' We have
recommended that the commission be set up... there is a need for it.
What is your position now, given that the
IPCMC is with the AG and it has not seen the light of day?
I cannot comment...
The proportion of complaints lodged with
Suhakam against law enforcers appear to have reduced. Do you see this as a
result of a police reform process?
Let’s go back to history. When Suhakam was established it
was the time of (former deputy premier) Anwar (Ibrahim’s sacking). There
were lots of demonstrations and a lot of complaints (against the police).
But today, we receive complaints about police inaction. That is generally
the main (form of) complaints. We have acted on it. (For example) death in
custody, we have taken a stand where we would hold a inquiry if they don’t
initiate an inquest. But when they hold an inquest, there is a question of
dates by the court. The court (could) postpone a case indefinitely.
I don’t know what happened. Not enough judges? The government already
appointed more judicial commissioners. But we still get complaints of delay.
Unfortunately, we cannot call public inquiry into the affairs of judges
(laughs). We (Suhakam) do not go beyond what we are required to do by the
law.
Is Suhakam observing that a police reform
process is currently taking place?
We have urged that the IPCMC be established. But the reply we always get is
that it is still with the AG. I guess it must be very difficult to come out
with it.
Maybe the government is the cause of the
delay?
I cannot comment on that because I have no evidence.
Please comment on the impending Rela (Ikatan
RELAwan Rakyat) bill.
On Rela, we have expressed our views on their conduct. In fact, we arranged
for a dialogue with Rela on what they can and cannot do. That far we have
done.
But if they continue to do, I think there is enough
powers in the police to investigate the actions of (errant) Rela (personnel)
- whether they act within the law or whether not they have committed a
criminal offence. It’s entirely up to the police and the AG’s Chambers to
consider (taking action).
There is speculation that Rela would be given
even more powers with the new bill. What is your stand on it?
No legal power is without limits. If legal power has no limits, it's
dictatorship. There must be limits. Everybody wants power and never wants to
give up power. But I think it all depends on how the law is drafted and the
policy of the government.
What was the outcome of the dialogue with Rela?
We can only advise them. If they accept our advice, then it's good. If they
don’t accept our advice, we have discharged our function in promoting the
protection of human rights.
The response was very good. But so far, there is no more (reported cases) of
(beatings) by Rela (members).
Given that we have immigration and other
enforcement agencies, do you still think we need Rela?
These are issues that concern (national) security and maintenance of law and
order. The internal security and home affairs ministries are the best
judges. I cannot comment. Whether there is justification or not, they are
the best judges.
Legally, our country is in the state of emergency. There
are overlapping proclamations of emergency. So it’s totally not correct to
say that we’re not under the state of emergency. (Emergency laws) have not
been totally lifted.
The question is that we have gone back to parliamentary democracy. The laws
are passed by Parliament and not through emergency ordinances passed by
cabinet through the Agong.
Some of the emergency ordinances have been repealed. If you say that some of
the laws are not fair, particularly the ISA (Internal Security Act),
countries around the world would appear to have similar laws. America, UK,
Indonesia, Philippines, Australia ... in view of the lingering international
threat of terrorism.
 |
News 
Subscribe to this comment's feed
Circular No 023/2012: Talk on ISO 9001 | 2008 Quality Management System Certification
