Reforming the A-G’s Office

The Attorney General must be prepared to stand in Parliament and be held fully accountable, says Zaid Ibrahim.

COMMENT

By Zaid Ibrahim

Abdul Gani Patail has been the Attorney General (A-G) for many years now. He assumed office at an early age, and it is his good fortune that Tun Dr Mahathir Mohamad (who was prime minister at the time) liked him.

During my short stint working with him, I found him cooperative and a hardworking civil servant.

Abdul Gani will probably remain A-G for a while more, even though he has received a lot of flak and criticism. Some are justified, and some are not.

The list of cases and complaints is too long for me to recite here but everyone knows that no one has been brought to book for the MAS scandal that caused losses of billions of ringgit.

Everyone knows that those responsible for the death of Teoh Beng Hock, and Ahmad Sarbaini Mohamed have not been held accountable. Everyone remembers the “no further action” against those implicated in the judge-fixing (i.e., the Lingam Videotape) scandal.

There are many other cases involving high-profile personalities who were acquitted or had their charges dropped without the public being given satisfactory explanation of why those cases were not successful.

This happened in the 2007 prosecution of Tan Sri Eric Chia for criminal breach of trust. It happened again in the 2009 prosecution of former Land and Cooperative Development Minister Tan Sri Kasitah Gaddam for corruption and cheating.

It happened again this year in the high-profile case against Constable V Navindran, who was charged with causing grievous hurt to A Kugan who died in the Taipan police lock-up two years ago.

The person who holds the office of AG must be one who make himself transparent and accountable. He must not be the the type who is reluctant to engage with the public. He must not remain below the radar, a personality trait common among those who like fishing.

Its true that he is the chief legal adviser to the government and the Prime Minister, and in a sense its true that for as long as his employer is happy with him, why should he care about what the public thinks.

But he is wrong to take this attitude. He is no ordinary civil servant. He is ex-officio the Public Prosecutor with powers conferred to him by the Federal Constitution.

Malaysian Attorneys-General assume a dual role: they are simultaneously the legal adviser to the government and the Public Prosecutor.

Taking responsibility

As Public Prosecutor the A-G is entrusted with making sure that the criminal justice system works well and functions with integrity and fairness. As a legal adviser, the A-G makes sure that the activities of the government are legally defensible.

The A-G works for the government of the day to make sure that all government actions are in accordance with the law – a good legal adviser will also put his or her foot down when the government transgresses the law.

This is easier said than done when there are politicians in the Cabinet who place politics first and law second. Usually the AG will relent in such situation.

However as a Public Prosecutor, the A-G works not for the government but for the public at large.

He serves the public in providing a justice system that serve them well. As Public Prosecutor, the A-G is a public institution empowered by the constitution with all the discretionary powers in the world to charge or not to charge anyone for any offence or crime.

He is the barometer by which we measure our success as a country governed by the Rule of Law.

Unfortunately whist he is responsible for the well being of the justice system in the country, he has no control over other stakeholders.

He has no say in how the police force should be managed. He has no say in how the investigation team could be improved. He has little say in the efficiency of the court system.

He has to accept the quality of politicians managing the country. So its not fair to blame him soley for the weakness and defects in the overall administration of justice in the country.

Still he has to assume some responsibility. When a public official has such wide discretionary powers, he or she must exercise them with care, based on established principles and with integrity and fairness.

This is where the A-G must be transparent, must engage with the public, and must provide reasons for all his or her actions and decisions.

The A-G cannot say “it’s my power and that’s the end of the matter”. The A-G is a public institution and, as such, must be held accountable and answerable to the public.

I tried to convince former prime minister Tun Abdullah Ahmad Badawi that the A-G’s post should be made a political position and that the incumbent must be made a Cabinet member.

The Attorney General, in my view, must be prepared to stand in Parliament and be held fully accountable. I was of, course, unsuccessful in pursuing this.

Are the politicians ready?

Making the A-G a political position does not mean that the A-G’s Office automatically becomes somehow “better” than if it were non-political.

The character and personality of the person appointed as A-G would still be the most important factor, but as a political office the incumbent would not be able to escape enquiry and questioning in Parliament.

Some who opposed my idea said that a politically-appointed A-G would be motivated or influenced by political considerations.

The fact is that, in the old days when the A-G was a member of the Cabinet, there was a lot more more confidence by members of the public in the AG office.

The Solicitor-General (S-G) was effectively the Public Prosecutor and the S-G’s team pursued prosecutions without interference from political bosses while the A-G remained the nominal Prosecutor and also chief legal adviser to the government.

Why can’t we do this today? Indeed, it is possible that we can do other, better, things to make the criminal justice system more transparent and accountable.

But the A-G’s Office will not improve if political parties forming the government (regardless of which parties) are reluctant to reform the police; reform the laws or continue to exert political influence over the A-G’s role as Public Prosecutor.

The question will always be: how prepared and willing are politicians to share power with other state institutions such as the A-G’s Office in order to provide proper checks and balances to our system of government?

Will the politicians be willing to establish an independent Prosecutors Office which ; of course, will make them somewhat “vulnerable”?

The weakness in the present criminal justice system is not the sole fault of the AG. Criminal investigation and case preparations are not done by the AG office but by the police, and yet the weakness in the investigation will reflect on the Attorney General.

Also the lack of evidence can be attributed to unwillingness of key witnesses to come forward; again we cannot blame the AG for this situation.

I have not heard from the Prime Minister or Pakatan Rakyat about how, or even if, they intend to reform this important institution called the AG Office in order to make our justice system better.

They should think seriously about it if they want reforms and and improve our justice system as much as they say they do.

Zaid Ibrahim, a former law minister, in the president of Kita.