Attorney-General or Pamphleteer-General? – A Reform Long Due (Part 2)

Part 2 of this article examines the structural flaws that result in today’s shockingly lack of independence and accountability by the Attorney-General.

Having quasi-judicial powers, the Attorney-General’s (AG) proper performance is dependent upon independence and impartiality from both party political influences and the Cabinet.

All the questionable misdemeanours of the Malaysian AG point to this: The lack of legal safeguards to ensure the independence and accountability of the AG’s office.

Principles behind the AG’s Independence

In 1924, in what was known as the Campbell Affair, the English AG was directed by Cabinet to withdraw a criminal prosecution against Campbell as editor of the Workers Weekly communist newspaper. Pressure from Labour Party backbenchers proved instrumental in bringing down the short-lived first Labour government and sparked the debate on the AG’s independence. This led to the birth of the “Shawcross doctrine”, based on a well-known statement by Lord Shawcross in Parliament in 1951 when he was Attorney-General in the Labour government. The doctrine reads: [1]

“First, the Attorney-General must take into account all relevant facts, including the effect of a successful or unsuccessful prosecution on public morale and order.

Second, the Attorney-General is not obliged to consult with cabinet colleagues but is entitled to do so.

Third, any assistance from cabinet colleagues is confined to giving advice, not directions.

Fourth, responsibility for the decision is that of the Attorney-General alone; the government is not to put pressure on him or her.

Fifth, and equally, the Attorney-General cannot shift responsibility for the decision to the cabinet.”

Article 13 of the United Nations Guidelines on the Role of Prosecutors (1990)[2] states that prosecutors shall avoid all “political, social, religious, racial, cultural, sexual or any other kind of discrimination”. Article 3 of the International Association of Prosecutors’ “Standards of Professional Responsibility and Statement of the Essential Duties and Rights of Prosecutors”[3] dictates that Prosecutors should remain unaffected by individual or sectional interests and public or media pressures, and to assist the court in arriving at the truth.

Nonetheless, it is a norm for an AG to consult the government. This is because Ministers in the Cabinet possess information of the important social ramifications of a given prosecution that must be reviewed to fulfil the AG’s role as the protector of public interest. Nonetheless, assistance of the Cabinet should be confined to informing him of particular considerations which might affect his own decision, and must not constitute them directing his decision. [4]

Does Malaysia Ever Follow These Guidelines?

In Malaysia, constitutional and legal features don’t even attempt to provide any semblance of independence for the Attorney-General.

Firstly, the AG is both the Advisor to the Government and Public Prosecutor. He has the Government’s best interests at heart and even defends the Government in Court. Thus, it can be truly difficult to be impartial when the AG exercises discretion to prosecute government employees, Ministers or even politicians of the ruling Government.

Secondly, under Article 145(1), the AG was originally to be appointed by the YDPA after consultation with the Judicial and Legal Services Commission. However, 3 years after Merdeka, section 26 of the Constitutional (Amendment) Act 1960 authorized the Prime Minister instead to appoint the AG. That was arguably the turning point for the Executive to interfere with the AG’s functions, robbing any safeguard for independence.

Thirdly, there are many instances where the Executive directs the Attorney-General. On the Hansard, Dato’ Seri Mohamed Nazri Abdul Aziz explicitly announced that “the Public Prosecutor is responsible to the Cabinet in exercising his powers and discretion. Thus, he cannot be said to act entirely on his free will”.[5]

The biggest stumbling block would be the AG’s absence from accountability in Parliament. The AG almost never explains his prosecutorial decisions, even after a case has been closed. When pushed by MACC or other NGOs, the Attorney-General’s golden silence gives room for a litany of speculations.

When the buck reaches the Minister of Law in Parliament, he proudly boasts that the Government cannot interfere with the Attorney-General. The public, who have voted in the legislature to debate national issues, have the right to demand answers. This inevitably leaves room for public distrust, especially when the Attorney-General’s decisions have such adverse impacts on the lives of people and public interest.

This is reflective in a Merdeka Center for Opinion survey which found that public confidence on the Attorney-General’s independent handling of the 2008 Anwar Ibrahim Sodomy case was relatively low, with 25% “not confident at all” and 28% “somewhat not confident”.[6]

The only safeguard to the office is Article 145(6): that he “shall not be removed from office except on the like grounds and in the like manner as a judge of the Federal Court”.

Independence and Accountability – Must Have Features for the AG

The defects of the AG’s office are serious and require an urgent relook. The office of Public Prosecutor, important enough to be the fourth or fifth estate in democratic governance, should be distanced as far as possible from the Executive. The lack of independence will bleed out any institutional integrity, leaving open wounds for corruption and undue influence to thrive.

Silence and passing the buck is not the model of transparency and accountability. It reinforces the perception that the AG is not independent, decaying the public trust which forms the cornerstone of any criminal justice system.


[1] United Kingdom, House of Commons Debate, vol.483, cols 683-684, 29 Jan. 1951.

[2] Adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, 68th plen mtg, UN Doc A/RES/45/121 (1990).

[3] Strengthening the rule of law through improved integrity and capacity of prosecution services, United Nations Office on Drugs and Crime, Commission on Crime Prevention and Criminal Justice, Res 17/2, annex.

[4] Canada, House of Commons Debates, vol.121, 3882, 17 Mar. 1978 (Honourable Ron Basford).

[5] Parliamentary Debates, Representative, Twelfth Session, Third Session, Third Meeting, 10 Nov. 2010, 91 (Dato’ Seri Mohamed Nazri Abdul Aziz).

[6] Merdeka Center for Opinion Research, “Only 11% believe in sodomy claims”, 3 May 2013 <http://www.merdeka.org/media/48-010808.html>

 


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5 Responses to Attorney-General or Pamphleteer-General? – A Reform Long Due (Part 2)

  1. I really thank you for the valuable info on this great subject and look forward to more great posts.
    peryourhealth

  2. Justica

    It depends on whether the AG is an elected MP. In the case of the Commonwealth of Australia, the AG is an MP and acts like a Minister and he is shadowed by a Shadow AG from the Opposition. However in Malaysia, he is an appointed official and has the status of a judge. He wears 2 hats – as First Crown Officer ie legal advisor, and as Public Prosecutor. In the role of PP, he is required to act independently. Unfortunately, not many Malaysians understand this dual role and the current AG seemed equally confused as to his own role, as on many occasions, he is not seen to be acting impartially as PP. It would appear that many right-minded citizens have lost confidence in the AG as the Public Prosecutor, and some will go further to argue that the incumbent is less than competent and is beholden to a corrupt government. Is he also corrupt? That is million question? The worse AG, ever?