Power tends to corrupt, and absolute power corrupts absolutely
- Lord Acton
Attorney-General Ahmad Terrirudin Mohd Salleh’s assertion that the public prosecutor does not need to give reasons for seeking the withdrawal of criminal charges has raised with an urgency ever more than before, the need to limit and separate the AG’s powers.
Not only should this involve the oft-mentioned separation of powers of the AG as an adviser to the government and public prosecutor, it should also entail the devolvement of power to prosecute to the individual investigation and enforcement agencies.
The second is as important as the first. Many investigations by enforcement agencies such as the MACC and Bank Negara Malaysia came to nought because the AG, in his lack of both wisdom and independence, refused to charge offenders.
The most significant of these was when then-AG refused to charge then-prime minister Najib Abdul Razak despite overwhelming evidence of billions of ringgit coming into his account.
Not only that, he absolved Najib of any wrongdoing in that case.
Because the prime minister effectively appoints the AG and can remove him at any time - as Najib did when under threat of prosecution for 1MDB-related offences - the prosecutorial role of the AG is not always independent, often at the most crucial of times.
Terrirudin’s (above) unfortunate statement comes on the heels of Chief Justice Tengku Maimun Tuan Mat’s speech at the opening of Legal Year 2024 recently, where she said the judiciary was wrongly painted as the villain when it was the prosecution that withdrew charges.
There has been considerable public disaffection over the prosecution’s withdrawal of 47 criminal charges against Deputy Prime Minister Ahmad Zahid Hamidi in September last year.
The presiding judge did the only thing he could do by giving a discharge not amounting to an acquittal - the infamous DNAA. The judge had earlier said a prima facie had been established.
While the Federal Constitution does not explicitly provide for reasons to be given, discretion must always be exercised wisely and with accountability. Otherwise, the result is despotism.
While the DNAA created a firestorm of reaction, it was the then-AG Idrus Harun who was responsible, not the judiciary as Maimun pointed out.
In a surprising twist of events, the Bar Council filed for a review and challenged the decision of the AG to withdraw the charges.
It set in motion a process to determine if the courts have the right to review the AG’s decision. This is likely to be a lengthy process and was taken to the Federal Court.
The quicker way is to make legislative changes, especially since the coalition government now commands a two-thirds majority to enable necessary changes to the Constitution. Pakatan Harapan has repeatedly promised this.
The scope of powers of the AG is defined under Article 145 of the Federal Constitution. The relevant ones read as follows:
“(2) It shall be the duty of the attorney-general to advise the Yang di-Pertuan Agong or the cabinet or any minister upon such legal matters, and to perform such other duties of a legal character, as may from time to time be referred or assigned to him by the Yang di-Pertuan Agong or the cabinet, and to discharge the functions conferred on him by or under this Constitution or any other written law.
“(3) The attorney-general shall have power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for an offence, other than proceedings before a syariah court, a native court or a court-martial.”
As such, the AG plays a dual role: as an adviser to the government and the sole prosecuting authority in the country. This is reinforced in Section 376 (1) of the Criminal Procedure Code for criminal offences.
Article 145 (5) of the Federal Constitution states that the AG holds office at the pleasure of the king. Effectively, the prime minister can remove the AG at any time and appoint a new one.
As such, these pieces of legislation should be amended to effect the following:
The AG as an adviser to the government and is to be appointed by the cabinet.
The public prosecutor as an appointment independent of government and to be appointed by a bipartisan parliamentary committee and to have a security of tenure of five years at least.
To devolve the power of prosecution to individual investigative authorities such as the police, MACC, BNM, the Inland Revenue Department and Customs, to mention a few.
This would solve the problem of lack of independence of prosecution which is currently non-existent in several prominent cases.
It would also take care of the excessive concentration of power in the new public prosecutor role by devolving power to investigative authorities.
If Malaysia is to fight corruption and have an impeccable law and order system, these are necessary measures. - Mkini
P GUNASEGARAM says to fight corruption, we must remove measures which promote corruption such as absolute discretionary power.
The views expressed here are those of the author/contributor and do not necessarily represent the views of MMKtT.
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