MALAYSIA Tanah Tumpah Darahku


Friday, September 30, 2011

Why no action against the attorney-general?

Attorney-general Abdul Gani Patail has been challenged to account for three expert reports, and is also alleged to have fabricated investigation into a particular case.

And, despite mounting public pressure for Gani to come clean on these issues, he has chosen to maintain a deafening silence.

NONEShould he find it too tough to account for all these allegations, which is understandable, he should at least show his sincerity by giving an account on just one of them. Any one of the three, that he is comfortable with, will do.

For the benefit of all, the first expert report was dated Oct 26, 1998. This report, together with the second expert report, was properly tendered during the Royal Commission of Inquiry (RCI) proceedings on the infamous Black Eye Incident in 1999, and duly recorded by the commissioners.

However, before the RCI's final report was presented to the Yang di-Pertuan Agong, the first report went missing.

No other person, other than the maker of the document and the AG himself, have any personal interest in the expert reports.

The onus for producing, and the subsequent disappearance of the report dated Oct 26, 1998, before it reached the Agong, lay solely with Gani Patail. Fabrication of evidence is one thing, and how the report was "disposed of" is another.

If such a disloyal and despicable act be instituted against the King - that is, causing a report to be presented to him to "disappear" - then it can only mean that more serious and heinous acts can befall His Majesty's ordinary subjects.

And, this becomes more worrying when the AG himself appears to be immune to criminal prosecution, ostentatiously protected by the powers that be.

NONEIf making the first expert report to disappear, suddenly, just before it is to be presented to the Agong, is no big deal to Gani, then the sudden and timely appearance of a "suicide note" in DAP political aide Teoh Beng Hock's RCI and causing the material CCTV footage to disappear into thin air in Customs officer Ahmad Sarbaini Mohamed's inquest are just peanuts to him.

The "now you see it, now you don't" tricks have been practised one too many times right before our eyes, to the extent that not even a simple-minded person, like many of us, can no longer accept these occurrences as mere coincidences.

Prosecution of an AG

Quite many people hold the perception that the AG cannot be prosecuted in any criminal court, except by himself, since he is also the one and only Public Prosecutor. This contention is inaccurate.

In this, I refer to Section 376(3) of the Criminal Procedure Code (CPC):

"The Public Prosecutor may appoint fit and proper persons to be Deputy Public Prosecutors, who shall be under the general control and direction of the Public Prosecutor and may exercise all or any of the rights or powers vested in or exercisable by the Public Prosecutor, by or under this Code or any other written law, exceptany rights or powers expressed to be exercisable by the Public Prosecutor personally and he may designate any of the Deputy Public Prosecutors as Senior Deputy Public Prosecutors."

Quite simply, this passage means, that a DPP can do what the AG can, except that which the AG has to do personally, as required by law, which no other DPP can do on his behalf, under any circumstance, such as:

a) Appointment of DPPs under Section 376(4)of the CPC;

b) Transfer of cases from magistrate's/session courts to the High Court under Section 418A of the CPC;

c) Initiate proceedings against the editor, proprietor, printer or publisher, etc, under the Printing Presses and Publications Act 1948 under Section 68(2) of the CPC; and

d) Any other action, specified as above, under any other law.

For the record, the solicitor-general only has the powers of a DPP. Like any other DPP, the SG can exercise all the powers of the AG, except those meant to be done by the AG personally. There is no provision for the position of a deputy AG or acting AG.

If a chief justice can be sacked...

It is clear from the above explanation that any DPP for that matter, from a day-old officer to the most senior in the hierarchy, the solicitor-general included, has the power to prosecute the AG if he or she wants to, or by anyone among them who have the courage and the will.

No one can stop them, not even the prime minister. I stand to be corrected on this.

After all, it was just a DPP - not the even the solicitor-general or the head of the prosecution department of the AG's Chambers - who closed the investigations into Gani.

As for the prime minister, his authority over the conduct of the AG is defined under Article 125(3) of the constitution, to be read together with Article 145(6).

This simply means that when the PM is satisfied that the AG has breached any provision of the code of ethics or for any other reason, he can make a presentation to the Agong for the appointment a tribunal to adjudicate the conduct of the AG, and thereafter take the appropriate actions based on the findings and recommendations of the tribunal.

The issue whether the AG can be prosecuted or otherwise should not arise. The laws of our country for dealing with this kind of situation have long been in place.

We have in our history a situation where the chief justice of the Judiciary was unceremoniously removed from office for writing some letters to the King. So, why the different treatment when it comes to the attorney-general, when what he did are criminal in nature?

If for some strange reason the cabinet considers that deceiving and/or misleading and/or insulting the Agong and/or the government by the attorney-general so blatantly is still a non-issue, then we are all in serious trouble.

Mat Zain Ibrahim is a former Kuala Lumpur CID chief. He can be reached at matzainibrahim@gmail.com

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