Serba Dinamik case shows AG’s discretion should be limited

If there was indeed more evidence necessary to show that the attorney-general’s (AG) sole discretionary powers to prosecute should be limited, the latest issue involving a public-listed company, Serba Dinamik, offers a very compelling one.

Briefly, four Serba Dinamik officers were, on Dec 28 last year, charged in court for providing false information about the oil-and-gas company to the stock exchange, Bursa Malaysia. The offences would have attracted a fine of RM3 million each and prison terms of up to 10 years each, as they were very serious offences.

However, on April 13, in a move that was heavily criticised, capital markets regulator, the Securities Commission (SC), merely imposed maximum compound fines against the officials instead of taking them through the court process for the criminal charges initiated. But that was not decided by the SC but the AG.

The SC said, when announcing the decision: “This follows the decision of the public prosecutor to accept the representation made to the Attorney-General’s Chambers (AGC) by Serba Dinamik and the individuals involved regarding the charges pending in court.”

This was a clear indication the SC was not in agreement with the AGC over the sentence. On April 28, the SC chairman resigned, six months into his renewed three-year term. On the next day, three other senior officials of the SC resigned.

Predictably, this has led to an enormous loss of confidence in the SC and even in the capital markets, especially the stock market, and leaves a huge gap in the continued effective regulation of the stock and capital markets by the SC and serious questions as to whether the SC can ever be effective.

The entire credibility and integrity of the capital markets in Malaysia is at stake but the backdoor government doesn't seem to care at all.

It leads to the unsavoury, unpalatable and bitter conclusion that powerful political hands are in play, resulting in the final, inexplicable, unexplained decision by the AG to accept a compound instead of going to a full trial. In fact, one article plainly said so.

The train of events is extremely concerning and blatant given the very public unfolding of Serba Dinamik moving into grave financial difficulties, its accounts being heavily qualified by auditors who faced court action, and sanctions by Bursa Malaysia, which also faced court actions from Serba Dinamik.

Futile efforts

Even if all regulators such as the SC and the central bank, Bank Negara Malaysia, were effective, did their investigations properly, and took miscreants to court via prosecutors in their employment, their efforts can be frustrated. The final decision rests absolutely with the AG, who is appointed by the prime minister.

Article 145. (1) of the Federal Constitution expressly provides that “the Yang di-Pertuan Agong shall, on the advice of the Prime Minister, appoint a person who is qualified to be a judge of the Federal Court to be the Attorney General for the Federation”.

Article 145. (3) states: “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”.

These two provisions have enabled successive prime ministers to interfere with and abuse the process of prosecution through the AGs and even to dismiss AGs who were not cooperative as with former prime minister Najib Abdul Razak who dismissed Abdul Gani Patail in 2015 over the 1MDB case.

Abdul Gani’s successor, Mohamed Apandi Ali, exonerated Najib of any wrongdoing in relation to the 1MDB case in 2016 but after the Umno/BN government fell in May 2018 a number of charges were pressed against Najib. One series of charges found him guilty, sentencing him to 12 years’ jail and fining him RM210 million. The case is now on appeal at the Federal Court.

Former attorney-general Mohamed Apandi Ali

It would need an amendment to the constitution to prevent the continued abuse of the AG’s discretionary powers. The first step would be to devolve power to the regulatory bodies such as the Securities Commission, Bank Negara, the Companies Commission and other specialised commissions and bodies to directly prosecute any cases within their jurisdiction without any need for approval from the AG.

The regulatory authorities know what is best in these cases. Simply assure that they are run by competent, honest and able professionals (note that the new SC chairman is a politician) and they should be able to do the rest. The SC and Bank Negara for instance, have considerable ability within them to do this.

The next step is to make the appointment of the AG through Parliament and to give security of tenure of say, five years, with the proviso that he can only be removed by a two-thirds majority in Parliament - the ultimate check and balance.

That will ensure that the AG can do his job properly with no fear that he will promptly be removed if he did anything in the line of duty which can even remotely offend the rather thin or thick sensibilities of whoever may be prime minister at the time.

The third and final step is to devolve power to the various deputy public prosecutors (DPPs) and defer to their decision as to prosecute or not, merely keeping an oversight to ensure that the DPPs performed their job functions properly, professionally, competently and with no fear or favour.

In this respect, the setting up of an internal committee which can decide on issues rapidly where there may be disputes as to whether prosecutions should be made or not should be considered.

The Pakatan Harapan opposition should exert pressure on the current backdoor government under the memorandum of understanding (MOU) it signed which covers judicial independence, which must include independence over the decision to prosecute or not.

If that does not happen, such changes must become a major election issue and become part of the election manifesto of the Harapan coalition. This time, don’t delay the promised changes, which means keep potential turncoats out.

In Malaysia, almost every problem traces back to the lack of political will. - Mkini

---

P GUNASEGARAM, a former editor at online and print news publications, and head of equity research, is an independent writer and analyst.

The views expressed here are those of the author/contributor and do not necessarily represent the views of MMKtT.