I refer to the statement issued by G25 that there should be a transfer of prosecutorial powers from the Attorney-General to an independent Office of the Director of Public Prosecutions.
This is indeed a necessary move if we want the Rule of Law to prevail in the country, but the Office of the Public Prosecutor will not be independent under UMNO ’s rule. This was told to me during a heated exchange one morning at a meeting in Parliament some years ago when I was Minister in charge of the law portfolio.
The then Prime Minister Tun Abdullah Ahmad Badawi, Attorney-General Tan Sri Gani Patail and Minister Dato’ Seri Mohamed Nazri Aziz were huddled a room listening to my proposal to amend Article 145 of the Federal Constitution.
I had given them the same reasons as the G25 to explain why the person of the Attorney-General is not able to act impartially and independently as the Public Prosecutor under Article 145.
The conflict of interest arises from the fact that he is also a subordinate and legal advisor to the Prime Minister. Of course, I had no idea what would happen seven years later under the present Prime Minister; otherwise, I would have told Gani then not to oppose my proposal. I could have told him that in certain situations, he could be sacked for trying to do his job — unless the decision to prosecute was given to an independent prosecutor’s office.
Gani was a loyal servant through and through. He told the meeting that such a constitutional amendment was unnecessary as he could delegate his powers to Deputy Public Prosecutors in the Malaysian Anti-Corruption Commission — this was the crux of the discussion at the time. I had wanted the MACC to have full prosecutorial powers so it could be effective, and was trying to tell Pak Lah that the hundreds of millions of ringgit spent on the MACC would be wasted if we did not give it the independence and power to prosecute.
Whilst it is true that under the Criminal Procedure Code the Attorney-General can and does delegate his powers to DPPs to prosecute (if he wants to), this is an unsatisfactory arrangement as he can always revoke that delegation.
What Nazri said was even more revealing: he said UMNO would never allow for such an amendment. He said he would only allow such an amendment over his dead body. I could not understand this outburst at first. His strong objection was a shock to me since he was legally qualified and must have understood the conflict of interest, not to mention the supremacy of national interest above all else.
After what has happened with the 1MDB scandal however, I now know why Article 145 will remain intact forever. UMNO’s agenda is somehow always going to be higher than the national interest, and all they have to do to secure that supremacy is to find the right AG every time there is a vacancy. - Zaid.my
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