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.