The Attorney-General’s prosecutorial power: conflict and resolution

 

With Ahmad Zahid Hamidi’s DNAA, there is renewed furore over the attorney-general’s power of prosecution.

The AG’s unfettered, absolute discretion whether to prosecute someone or to drop charges has been controversial for a long time. Many have called for this power to be taken away from the AG. Even the government has recognised this need. But the wheels of change creak slowly.

The AG has two roles. He is legal adviser to the government by virtue of Article 145 (2) of the Federal Constitution. He is public prosecutor under Article 145 (3) of the Constitution and Section 376 (1) of the Criminal Procedure Code (CPC).

This duality of roles clearly creates conflict of interest situations. One would be when the attorney-general, acting as legal adviser to the government, has also to consider prosecution of a member of the government.

Such situations have arisen as we all have seen. The cases of Zahid, Najib Razak and Lim Guan Eng spring easily to mind.

In 2015, attorney-general Apandi Ali refused to prosecute prime minister Najib for offences relating to 1MDB. The Bar Council in 2016 sought judicial review of Apandi’s decision. It asserted that the attorney-general was in a position of conflict being both legal adviser to Najib and the public prosecutor prosecuting him and thus could not act impartially.

The High Court refused leave to apply for judicial review. The Bar’s appeal to the Court of Appeal was dismissed. The Federal Court in June 2017 also denied the appeal. The attorney-general’s absolute discretion not to prosecute was upheld.

In 2018, after GE14, a new attorney-general acted differently. Tommy Thomas instituted proceedings against Najib for the very same offences. In July of 2020, the High Court convicted Najib of seven charges related to the SRC International case, sentenced him to 12 years’ jail and imposed a RM210 million fine. In December 2021, the Court of Appeal affirmed the High Court’s decision. In August 2022, the Federal Court rejected Najib’s appeal and ordered him to be taken to prison.

The glaring contrasting difference in the actions of the two respective attorneys-general suggests at the least, arbitrariness in the decision-making process of prosecution. At worse, it implies partiality and reflects a huge weakness in the administration of justice.

It also makes it abundantly obvious that the attorney-general’s dual roles should be separated to avoid conflict of interest and to ensure that the public prosecutor can act independently.

The 2018 government under Pakatan Harapan took steps to effect it. Law minister VK Liew announced in Parliament in March 2019 that a report to separate the powers of the attorney-general was being prepared for the consideration of the Cabinet. That report has not seen the light of day.

Since 2018, Malaysia has seen four successive governments and this inertia remains. After GE15, law minister Azalina Othman Said announced on Dec 7, 2022 that she had “initiated the first step in separating the public prosecutor’s office from the Attorney-General’s Chambers” and that the AGC would come up with a paper on it. Recently, Prime Minister Anwar Ibrahim said that the Cabinet had considered the matter but it would take more time and cost a lot of money.

Well, hurrah, here we go again. And so, we wait.

Meanwhile, here are some ideas that may help grease the wheel. To separate the dual roles, structural change is required. This change would inter alia involve amendments to the Federal Constitution and to relevant legislation.

In the Constitution, introduce a new clause in Article 145 that provides for the appointment of the public prosecutor. A suggestion is: “The Yang di-Pertuan Agong shall appoint a person who is qualified to be a judge of the Federal Court to be the public prosecutor for the Federation.”

Article 160 should have a new clause defining “public prosecutor”. Article 145(2) may remain unchanged, to retain the attorney-general’s role solely as legal adviser.

Article 145(3) to be amended to read (amendment marked) : “The Attorney General public prosecutor shall have power, exercisable at his discretion to institute, conduct or discontinue any proceedings for an offence, …”

Note that it is very important that the words “exercisable at his discretion” be deleted to remove the prosecutorial discretion that has been so contentious.

In section 376(1) of the CPC, delete “the Attorney General” and ensure only “the public prosecutor” shall have control and direction of criminal prosecutions.

In the definition of “public prosecutor” in Section 3 of the Interpretation Acts 1948 and 1967, delete the words “means the Attorney General and”.

With the creation of the office of the public prosecutor, there should also be created, a Malaysian Prosecution Service (MPS) that functions along the lines of the Crown Prosecution Service (CPS) of the United Kingdom.

From the website of the CPS, we glean the following information: “The CPS prosecutes criminal cases. It makes its decisions independently of the police and government. Its duty is to make sure that the right person is prosecuted for the right offence, and to bring offenders to justice wherever possible. It decides which cases should be prosecuted; … Prosecutors must be fair, objective and independent. When deciding whether to prosecute a criminal case, our lawyers must follow the Code for Crown Prosecutors. This means that to charge someone with a criminal offence, prosecutors must be satisfied that there is sufficient evidence to provide a realistic prospect of conviction, and that prosecuting is in the public interest.”

In the CPS, its Director of Public Prosecutions (DPP) is “superintended” by the attorney-general of the UK. This is chiefly because the attorney-general is a member of the UK Cabinet and he is accountable to Parliament. This allows him to answer to Parliament regarding the decisions of the DPP.

In Malaysia, it would be better to avoid this line of reporting, seeing that we are most concerned with the total independence of the public prosecutor. It is recommended that the public prosecutor should be subject to oversight of a select committee of Parliament and even then, only upon very narrow grounds of jurisdiction; such jurisdiction must not involve any active role in prosecutorial decisions. The frame of reference of the committee should only be for check-and-balance.

The MPS should also have a code of prosecution using as a guide, the CPS’ Code. Prosecutorial guidelines are important because they reduce arbitrariness. And they should be made public. Currently in Malaysia, the AGC does not inform the public about such prosecutorial guidelines.

There should be new provisions in the Constitution to provide for security of tenure for the public prosecutor including a provision that protects him or her from capricious removal. His removal can only be on ‘like grounds and in the like manner as a judge of the Federal Court’.

It must be recognised that security of tenure is a key factor that could influence the impartiality of the public prosecutor. We recall that attorney-general Abdul Gani Patail was abruptly removed by Najib in 2015 and replaced with Apandi. Gani was investigating Najib’s role in the 1MDB scandal.

As a nation, we have been talking about the need for an independent public prosecutor for a long time. With the current PH government capable of getting a two-thirds majority vote in Parliament for amending the Constitution, there is no excuse for delaying this matter further. - FMT

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