Arrogance Revisited

Recently, the Bar Council quietly delivered its “Discussion Paper on the Need to Separate the Posts of the Attorney General and the Public Prosecutor” to the Government. This was off the back of public discussions on the position of the AG, and a passionate write-up by Mohamad Ramli Abdul Manan, a former senior ACA officer and a member of the Bar. Two main arguments were made in the paper.

(1) The AG is clothed with near absolute powers

The AG’s decisions, many of which are discretionary, cannot be questioned in court. The AG is the head of the Legal Service, is a member of the Judicial and Legal Service Commission, is a member of the Pardons Board, and he/she may be appointed to a committee of either House of Parliament.

Quoting Tommy Thomas’ 1983 article, the paper states:

Perhaps the best way to examine the powers of the Attorney General is by way of an illustration. If an accused person is apprehended after an offence has been committed the Attorney General has the following discretionary powers:- to charge him, if so the type of charge, to issue a certificate to bring the case under the emergency legislation, to transfer the case to the High Court, to appear in person at the trial, to appeal to the Federal Court against acquittal and to apply for the remand of the accused until the disposal of the appeal, to give a written opinion to the Pardons Board if the accused is convicted to sit on the Pardons Board when pardon is considered. It cannot be believed that it is humanly possible for one person to combine the different qualities of executive partisanship, judicial temperament, advocacy skills and compassion and mercy which are called for in the exercise of these diverse and conflicting powers.

… Power corrupts and absolute power corrupts absolutely. The power of the Attorney General has increased since Merdeka, is increasing and ought to be diminished.

(2) The AG’s current position violates the doctrine of separation of powers

If the AG is under probe by the police or the ACA for the abuse of powers or the commission of an offence, and the AG is also the State’s prosecutor, can it genuinely be perceived that any investigation into the AG’s conduct would be independent and impartial? Citing the example in the case of Datuk Seri Anwar Ibrahim, the paper states:

The following perceptions cannot be avoided:-

(i) that the Attorney General has been put in a conflict situation;

(ii) that the Attorney General has a personal interest in the above investigations;

(iii) that it is difficult for the Attorney General to observe “complete objectivity and detachment” in the discharge of his role as the country’s top Prosecutor;

(iv) where is the comfort that his subordinates in his Chambers will not be influenced directly or indirectly by the Attorney General with regard to the investigations?

… A high premium must be placed in safeguarding the independent exercise of prosecutorial decision making to ensure that the health of the administration of justice system is not compromised. To achieve this, it is imperative and necessary to split the two offices.

The paper goes on to highlight the British and Indian models where the office of the Attorney General and the Public Prosecutor are, unlike in Malaysia, distinct and not fused as one.

The Minister, Datuk Seri Nazri Aziz, was reported by the New Straits Times on 27 January 2009, Bar move on A-G’s job gets ignored, to have said that the Cabinet did not discuss the Bar’s proposal at any of its recent meetings, “considering it a bid to attract cheap publicity”.

Where did this come from?

No wonder Malaysians still believe the Government has not learnt from its recent experiences at the polls. No wonder many are working hard towards having the Government fall soon. No wonder many are praying that arrogant Ministers would be quickly replaced.

It may have been some time ago, but remember the VK Lingam clip expose? The Bar, quite soon after the issue exploded, called for a Royal Commission of Inquiry (RCI) and also for an independent Judicial Appointments Commission (JAC). Ministers then said no need, I believe one said the former CJ Tun Ahmad Fairuz bin Sheikh Abdul Halim privately denied (to the Minister) that he (Tun) was on the other end of the line. The Bar threatened to walk, the Government responded with an “independent” panel, the Bar walked and delivered two memoranda, the Government is told (by the first panel) that a RCI is needed and forms the RCI, subsequently only for the RCI to confirm that it is indeed Tun Fairuz on the other end while recommending the establishment of a JAC. One full circle. The Government goes into overdrive, before the PM steps down, to legislate for the JAC. (Some say the JAC will function ultra vires the Federal Constitution, and a legal suit is likely to be seen which will create chaos to appointments under the new JAC regime – beware.)

Point being – had the Government listened a bit more to the earlier proposals made on the Lingam tape – surely much time, costs and resources would have been saved. Well, it seems our leaders have not learnt.

The Bar has given its reasons. Now, the Government must give its reasons for rejecting the Bar’s proposal.

I would urge the PM and the AG to respond with haste, and constructively.


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Life's a sufferance. Lawyering a bore. As Edmund continues various escape techniques to be rid of Lord Bobo’s influence, he crusades with UndiMsia! movers to build strange youth love movements around the country. And so he tweets @edmundbon and practises the black magic art of advocacy at www.BONadvocates.com

Posted on 25 January 2009. You can follow any responses to this entry through the RSS 2.0.

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4 Responses to Arrogance Revisited

  1. Thanks Haji Sulaiman Abdullah for this alert, and reminding us that learning and remembering the history of the Bar and its past resolutions are important things to do as a lawyer.

    Haji alerted me that in the year 2000, the Bar had resolved as follows:

    Motion 4:

    Whereas:-

    1. Today, for more than 90% of the criminal cases, the Magistrate’s Court and the Sessions Court are the courts of first instance. With regard to civil and commercial matters, the lower courts have the jurisdiction to hear disputes where the sum disputed or the value of the subject matter is not exceeding RM250,000.00.

    2. The mechanisms provided in the Federal Constitution to ensure the independence of the Judiciary (i.e. judges of the High Court, Court of Appeal and Federal Court, the Chief Justice, and President of the Court of Appeal and the Chief Judges of the High Courts) does not extend to Magistrates and Sessions Court Judges.

    3. For example, Magistrates are being remunerated at the scale similar to those of other civil servants with equal education qualification and length of service.

    4. All members of the Judicial Services, which includes Magistrates and Sessions Court Judges, and the Legal Services come under the jurisdiction of the Judicial and Legal Service Commission (ref. Art. 138 Federal Constitution), whereby the Attorney General is a member of the said Commission. Thus, the “prosecutors” and “judges”, especially when it comes to criminal matters, come under the jurisdiction of the same Commission and this does not augur well, for “justice must not only be done but also be seen to be done”.

    5. Some Magistrates have been appointed as Deputy Public Prosecutors (DPP), and some DPPs have also been appointed as Sessions Court Judges.

    6. Many Magistrates appointed are fresh law graduates. The only pre-requisite for the appointment as a Magistrate or a Sessions Court Judge is that he/she must be a member of the Judicial and Legal Services (see sec. 60 & 78A of the Subordinate Courts Act 1948). There is no other qualifications requirements akin to those provided for in Article 123 of the Federal Constitution when it comes to the appointment of the judiciary.

    7. As officers of the Court, lawyers have a duty to be proactive in making constructive suggestions for the improvement of the administration of justice in Malaysia.

    It is hereby resolved:-

    A. That the Malaysian Bar expresses concern about the lack of mechanisms and safeguards to ensure the independence of Magistrates and Sessions Court Judges in the lower courts.

    B. That the Bar Council be proactive and work towards bringing about reforms in the administration of justice in the lower courts in Malaysia, having special regard to the:-

    (a) qualification of Magistrates and Sessions Court Judges;

    (b) introduction of Mechanisms or Safeguards to ensure greater independence of Magistrates, Sessions Court Judges and other judicial officers; and

    (c) the necessity of separating the Judicial Services and the Legal Services.

    Proposer: Mr Charles Hector

    Seconders: En. Amin Hafiz

    Ms Mary Manickam

    Resolution:

    The Motion was unanimously carried.

    Follow-up Action:

    The Bar Council has set up two new Committees, namely; the Court Liaison Committee and the Administration of Justice (Judiciary) Committee to look into the issues raised by the Resolution.

    [http://www.malaysianbar.org.my/malaysian_bars_resolutions/the_54th_agm_of_the_malaysian_bar_held_at_the_renaissance_hotel_kuala_lumpur_saturday_25_march_2000.html]

  2. Gary

    The rakyat has yet again being cheated by our bolehticians. I dont think they are that stupid! It is sheer arrogance! One by one they shall fall. The latest episode of Kugan tells it all! History repeats! No wonder the AG is very edgy these days!

  3. Quote: "The Minister, Datuk Seri Nazri Aziz, was reported by the New Straits Times on 27 January 2009, Bar move on A-G’s job gets ignored, to have said that the Cabinet did not discuss the Bar’s proposal at any of its recent meetings, “considering it a bid to attract cheap publicity”.:" end quote

    Well well well, isn't that typical? You make one suggestion and all they sould muster is to say that it was a bid to attract publicity. Why the shit would the Bar need to attract publicity? Is the Bar in some sort of a reality TV thingy or what?

    Dear Nazri, politicians need publicity. Off and on. No, make that all the freaking while. Thye Bar doesn't need publicity. Popular or otherwise, the Bar will still be there. Ooops, unless you all repeal the Legal Profession Act la, of course.

    Well, you want to know what I think about the 7 billion ringgit stimulus package? I think you all better go and stimulate yourself. It is a joke!

  4. GreenBug

    Sorry, PM haven't read the Discussion Paper yet, busy visiting UAE countries, then there is CNY open houses to attend and before you know it, it is already March. Bye-bye and its not problem anymore….