Justice and a truly independent AG

 

From Walter Sandosam

To the layman, justice must be seen to be done and it must not be delayed. The punishment must fit the crime and delivered without bias. Hence the maxim “all are equal before the law”.

Two unrelated events involving the judicial arm, one relating to the discretion to prosecute or not (i.e. to commence the process to hold one accountable) and the other on a punishment meted out, have attracted much attention.

The Federal Constitution enshrines the responsibility to prosecute or otherwise on the attorney general – a position meant to be independent.

It is a challenge to be truly independent. Man is a mortal with frailties, subject to influence. To expect otherwise is naïve.

In the first instance, a decision was made to compound an offence related to incorrect financial reporting when earlier a decision was taken to proceed with criminal charges.

In the second instance, a High Court judge denied bail in a case involving an accident involving modified bicycles being ridden in the dark at an unholy hour. Not surprisingly, there was a degree of public concern expressed.

Summarily, the check and balance in the system kicked in. This allowed for the decision on bail to be appealed. It resulted in a different outcome and public concern was addressed.

Both of these instances do not fall under the ambit of the Executive or Parliament; it is a judicial process issue.

Both episodes are related to justice and punishment. The incongruence is that in the latter there is a check and balance mechanism and in the former, one has to contend with the “absolute discretion” of the Attorney-General’s Chambers (AGC).

This is perplexing as checks and balances are a cornerstone of societal interaction.

It is ironic that the Securities Commission (SC), which has to abide by the AGC’s instruction on prosecuting, is a key player here.

On the compounding, is the SC being stifled on one of its core tenets of good governance as reasons are not provided?

This hits in the face of the articulations of the SC through their various guidance that transparency is the way to go, be it on selection of directors, remuneration and the like.

The whole thrust on ESG (environmental, social and governance) is built on the premise of accountability and transparency as opposed to absoluteness in conducting affairs.

On this element, the AGC operates under the veil of absolute discretion. The case of the compounding of an offence under the Capital Market and Services Act speaks volumes on the exercise of this discretion.

What’s more, the AGC and the SC had gone for the jugular in similar cases in the past involving financial irregularities, which resulted in custodial sentences and hefty fines. What is different here?

Much has been expressed by various quarters on this sequence of events. It has raised more questions than cleared doubts on the veracity of the regulatory landscape.

Is something amiss here? Is there the silent arm of the Executive at work supporting a convoluted relationship between two seemingly independent parties?

It opens a Pandora’s Box of hypotheses. Can the public be blamed for such harmful speculation?

It is taken in good faith that the AG’s position is independent of the government, notwithstanding that the AG acts as an advisor to the government of the day. Prime ministers may be replaced but technically this should not have a bearing on the incumbent AG.

This “belief” however was called into question upon the resignation of a serving prime minister in February 2020. It was followed by the resignation of the AG. This appears to afford a link which previously was not a natural outcome.

It is also pertinent that the government has recently reached an out-of-court settlement (using taxpayers’ monies) with a former AG who served pre-May 2018 and was summarily discharged. Is this the “independence” we articulate?

At the end of day where do we go from here?

The CEO of the Minority Shareholder Watchdog Group (MSWG) has rightly called for structural reform requiring ratio decidendi (Latin for reason/rationale). Other stakeholders appear intellectually disengaged.

The AGC can practise selective deafness and throw caution to the wind hiding beneath the skirt of the Federal Constitution. Inevitably it will signal a death knell.

There are two pathways. Either go down the path of amendments to the Constitution to separate the posts of the AG and the Public Prosecutor, or the easier but still challenging route of “absolute discretion” vis-a-vis accountable discretion.

Sitting still and watching the seasons change is irresponsibility at its height. - FMT

Walter Sandosam is an ex-president of the Institute of Internal Auditors Malaysia.

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