Leaked memo: AG has ultimate authority, cease barking at the moon

 

From Walter Sandosam

Concern has been raised by certain quarters over a leaked memo from the Attorney-General’s Chambers (AGC).

In essence, the memo purportedly contains the recommendations of the prosecution team to the then AG that six charges against certain individuals did not meet the requirements of a prima facie case for criminal breach of trust.

Notwithstanding this recommendation from his team, apparently, the AG made the decision to proceed with the prosecution of a case which involved a senior politician.

The response from the current AG to this leak can be viewed as a template answer – “I/we will investigate”.

No time frame has been set nor any elaboration afforded as to what will be investigated i.e., the authenticity of the memo or the “culprit” who leaked it.

Really how long does it take to investigate? Possibly the civil service works at a slower pace or a new AG takes over buying more time! Hopefully, the matter does not fade from public eye.

Many fail to realise that the crux of the matter is that an AG, as enshrined in the Federal Constitution, has the ultimate authority to decide on whether to prosecute or not.

Ads by Kiosked

He is not obliged to take on board any comments, positive or negative, on the merits of prosecuting a case. Hence, it is a judgement call which rests solely on his shoulders.

Whether or not it is done in “good faith” is another issue altogether. This is a qualitative moral interpretation which is not guided by the laws of the land.

To provide context, in relation to “good faith”, another unrelated party, in a separate incident, i.e., the MACC chief commissioner was recently admonished for “lack of good faith” pursuant to an investigation that he had conducted. It is a damning observation, but nonetheless an observation it is.

Hence, conceding for a moment hypothetically that the memo is genuine and all its contents unchallenged, there is nothing that anyone can pursue on this matter as the buck stops at the AG, whatever anybody, even his own staff opine.

He makes the final call, and the full force of the law is behind him. This is so even if his officers have their own take on whether a case being considered for prosecution lacks substance.

The layman must understand this. Cease barking at the moon.

Ads by Kiosked

So, the focus goes back as to who recommends to the supreme ruler the appointment of the AG. Again, the law enshrines this duty to the ruling prime minister.

Whether he submits a list with one name (or more than one) and whether he wants to seek advice from other persons before he makes a recommendation are all at his discretion. The law gives him the mandate; hence challenge is superfluous.

In a similar vein, it has also been reported that an ex-PM had, based on a statement made by an ex-central bank governor in court testimony, questioned why the government had reached an out-of-court settlement with a now retired AG.

It is interpreted by some that the ex-PM is justifying his decision to dispense with the services of the said retired AG given that the monetary settlement involved taxpayers’ money.

It further adds credence to the view held by some that there is a degree of self-interest, not necessarily to the benefit of the nation, for the government of the day to appoint an AG that it is “comfortable” with.

It is for this specific reason that there is concerted pressure on the initiative, which is now gaining momentum, on the separation of duties between the public prosecutor and the AG.

The law and institutional reform minister has stated that the wheels have been set in motion with an empirical study on its way which would take about a year.

After this “empirical” study, laws have to be drafted and a plethora of activities need to be undertaken before such separation of powers can come to fruition.

Surely, for the good of the nation, expediency should be the order of the day as opposed to bureaucracy.

Given recent political history, the man on the street can only pray for haste lest as shown in recent times, another government comes into power and there is more time wasting or sandiwara (shadow-play) – all under the ambiguous clarion call for institutional reform.

Concern over the leaked memo is misplaced as everything has been done within the parameters of the law. The focus should be on expediting the separation of duties process to ensure some semblance of a check and balance. As it stands now, there is none.

It is worrisome especially when one reflects on possible abuses of power in favour of the government of the day. - FMT

Walter Sandosam is a former MACC oversight panel member and an FMT reader.

The views expressed are those of the writer and do not necessarily reflect those of MMKtT.