'AG's unfettered powers inconsistent with legal norms'

The lack of court oversight on the attorney-general’s (AG) decision on whether or not to prosecute a case is inconsistent with “modern legal standards” in the region, an Asian fact-finding mission found.

According to mission member Kishali Pinto-Jayawardena (right), unlike in Malaysia, other Asian courts have the power to review attorney-generals’ prosecutorial decisions. 

“The attorney-general (in Malaysia) remains beyond all scrutiny, and cannot be reviewed by the courts. This is problematic.

“The concept of unfettered cannot be accepted in modern legal standards,” said the Sri Lankan senior lawyer.

She was speaking while presenting the preliminary findings of the Asian Forum for Human Rights Development (Forum-Asia) fact-finding mission to assess freedom of expression and peaceful assembly after the general election.

She said that the mission, which took place from July 22 to 25, found that there were several instances of what appears to be “selective prosecution”. 

“Why is person A prosecuted for sedition for (promoting) a peaceful protest while person B who is engaging in things... obviously arousing religious hatred not prosecuted? 

“Whose authority is it (to prosecute)? It’s not the police, but the AG, and his role has to be reviewed,” she said. 

Section 3 of Article 145 of the federal constitution states that the attorney-general’s power is “exerciseable at his discretion”.

Systematic post-election crackdown

Meanwhile, Forum-Asia East Asia Programme Associate Joses Kuan said that the mission found that since the general election, the government has used “repressive laws... to suppress legitimate dissent in events surrounding” the May 5 polls.

Kuan (left in photo) said examples of violations to freedom of expression include seizure of publications, unfair media coverage and the use of laws like the Sedition Act and the Peaceful Assembly Act. 

He said that this is “contradictory” to the government’s pledges of reform and measures taken to safeguard human rights, like the appointment of a minister in charge of governance and integrity.

“It’s a systematic post-election crackdown,” he said.

He added that Malaysia was chosen for the mission as it had just concluded an election, while other countries in the region are just going into elections now. 

Meanwhile, Pinto-Jayawardena added that the existence of the Sedition Act is also inconsistent with regional standards, with many countries having already done away with this “archaic, colonial” law.

“We accept that one cannot incite racial hatred, but there are already (provisions) in the Penal Code which applies to this,” she said. 

‘Laws made in secrecy’

She said the mission also found that lawmaking in Malaysia is done almost in secrecy, with poor engagement with the public, civil society and key institutions like the Bar Council.

The mission had met with a range of stakeholders from government officials, political parties, the National Human Rights Commission, the Bar Council, NGOs and those facing charges in relation to their advocacy activities post-election.

However, it did not manage to meet with the Home Ministry, Attorney-General’s Chambers and Foreign Affairs Ministry but will continue to seek meetings with the authorities before its final report. 

The final report will be used as an advocacy tool in Malaysia’s upcoming Universal Periodic Review in October 2013.

Also part of the mission is former South Korea National Human Rights Commission chairperson and Seoul National University law professor Kwong-Whan Ahn.