Contributed by Joanne Chua Tsu Fae and H R Dipendra
Moderated by Steven Thiru, Treasurer, Malaysian Bar; Partner, Shook Lin & Bok, the session brought together a panel of esteemed speakers, Bala Reddy, Chief Prosecutor (Projects), Singapore, Kevin P Zervos SC, Director of Public Prosecutions, Hong Kong and Swandra Kim Chu Ramachandran, Deputy Parliamentary Draftsman I who stood in place of the Attorney General who could not make it today.
With the formalities underway, the first speaker said that when making prosecutorial decisions, the Attorney General does not receive nor act on instructions from either the elected legislature or the executive. In this regard, the Attorney General may be considered as an independent public officer who exercises his prosecutorial discretion in a quasi-judicial manner, similar to that of a judge. Bala admits that there are many possible sources of pressure that can compromise the independence of the Attorney General. The first possible source of pressure that usually leaps to mind is the possibility of interference of the government. Nevertheless, this is safeguarded against as in Singapore, the Attorney General is neither a member of the Cabinet and cannot be held accountable in parliament, nor is he appointed through a general election. He also notes that other external pressures may come from opposite parties, foreign government or in today’s modern world, virtual activist groups who may resort to half truths, rumours, outright lies in order to ask for certain decisions to continue or be stopped.
Whilst an independent Attorney General is an indispensible complement to an elected legislature and an independent judiciary in upholding the Rule of Law, this does not mean that the Attorney General can exercise these powers arbitrarily or to pursue his own personal agenda. The Attorney General is bound and guided by the notion of public interest in every prosecutorial decision that he makes. Bala left us with wise words to be emulated:
“It is incontrovertible that the independence of the Attorney General, in his capacity as the Public Prosecutor, is a key cornerstone in upholding the Rule of Law. While there are constitutional safeguards to preserve the independence of the Attorney General, at the end of the day, it is still incumbent on the Attorney General himself (as well as the prosecutors under his charge) to discharge their duties with objectivity and impartiality. If there is to be any bias in the Attorney General’s decisions, that bias should come down solidly in favour of the public interest.”
Kevin P Zervos SC began by saying that it was pivotal to the criminal justice system that its prosecution system be fair and transparent. The Attorney General acts for the public, not the government nor the enforcement. When pursuing a prosecution, public interest is the test key and underpins the role and function of the prosecution service. The independence of the Attorney General means he is free from any interference where all are treated equally in the eye of the law. This is dependent on the honesty and integrity of people who make up service especially the person heading it. Without true independence, the prosecution system becomes instrument of injustice, public confidence will fall and society will spiral into a state of lawlessness. There must be a check and balance and the prosecution service as well as the Attorney General must be assessed and held accountable. Nevertheless, likewise, the Attorney General must also be provided with an opportunity to provide reasons and justifications to decisions.
Moving on to how public interest applies in prosecution, the general rule of thumb is the graver the offence, the less likely public interest will allow for disposal of the prosecution. The more controversial public considerations are international relations and national security. What is in the best interest of the public? The problem here, he confessed was that this is usually a value judgment call.
Our Attorney General: The Guardian of Public Interest
In the place of the Honourable Tan Sri Abdul Gani Patail who was unable to be here, his paper was literally read by Swandra Kim Chu Ramachandran. At the outset, Swandra kindly stated that Tan Sri Abdul Gani Patail expressed his regrets as many in the audience would be disappointed for not being able to have a session with Tan Sri Abdul Gani Patail himself.
In the current state of the nation, the Attorney General admits that practical realities may outweigh the public interest factor. A particularly pertinent example volunteered was where the institution of a prosecution could compromise national security or public order.
It was emphasised that in Malaysia, unless the Attorney General is a Cabinet Minister, he is not part of the political establishment of the Executive branch of government. This, he claims, very importantly enables the Attorney General to remain apolitical. Malaysia’s first Attorney General, Tan Sri Abdul Kadir bin Yusof who as a Cabinet Minister, was also the Attorney General and the Minister of Law.
The institutional framework aside, the independence of the office of the Attorney General is jealously guarded to ensure that the Attorney General’s Chamber to carry out its constitutional and statutory functions with fear or favour.
The Honourable Tan Sri Gani Patail left us with a very poignant note and a quote from Emmeline Pankhurst.
“…the grievances of those who have got power, the influence of those who have got power commands a great deal of attention; but the wrongs and the grievances of those people who have no power at all are apt to be absolute ignored. That is the history of humanity right from the beginning.”
Here begins and lies the onerous duty the Attorney General’s Chambers to uphold and defend public interest, to serve and protect those most in need. This, he says is a challenge that he and the Attorney General’s Chambers strives in all humility to meet with integrity.