Attorney-General or Pamphleteer- General? – A Reform Long Due (Part 3)

Part 3 of this series by Lim Wei Jiet looks at the brighter side of things – how to reform our legal system to bring back the glory days of the Public Prosecutor.

So, we have identified the problems: no legal safeguards for independence and accountability. What is the solution, then?

Short-Term Reforms:

1) Explaining Prosecutorial Decisions to the Public

In the United Kingdom, the former AG Sir Thomas Hetherington explained in considerable detail how decisions are made in his department via national and regional newspapers, radio and television media, professional bodies and universities. In New Zealand, his counterpart releases prosecution guidelines or ex post facto explanations for public scrutiny.

It is high time the Malaysian AG steps out from his ivory tower. He together with his officers need to be more open to the public via Malaysia’s vibrant media outlets like Bernama and MalaysiaKini, in cogently explaining his actions in as much detail as possible. Beyond that, the Attorney-General needs to be willing to defend his decisions in professional settings like universities, the biannual Malaysian Law Conferences and academic journals.

Admittedly, this would be a healthy convention and custom, not a legal reform per se. But the public can take comfort that there is a reasonable explanation, or at least an attempt to explain, for every decision he makes.

2) Delegating Authority

In Canada, almost all extraordinary prosecution decisions are taken either by the individual Crown counsel, the local Crown Attorney or the regional Crown Attorney. Thus, most decisions never find their way up to the AG. He is only limited to establishing broad policy guidelines for Crown counsels in writing and leaving them to apply it.

There are many officers within the Prosecution Division network who should be given autonomy in prosecutorial decisions, including the DPPs assigned to the MACC, Royal Customs and Excise Department, the Securities Commission and the Central Bank of Malaysia. Being experts in these specialised areas of law, there is all the more reason to vest them greater independence from the Headquarters Unit of the Prosecution Division.

The Attorney-General’s Chambers has adopted the right mindset in allowing State Legal Attorneys to run prosecutions without referring to the AG, unless there is “some big matter” or “some technicalities”.[1] In the handful of prosecutions towards politicians, such detachment from interference by the higher-ups should be more apparent than ever.

3) Handing Prosecution Power to Enforcement Bodies

Even better, such discretion to prosecute should be exercised solely by the public enforcement bodies, which includes the MACC, Securities Commission and Companies Commission.

The current practice of the Attorney-General’s Chambers as the final arbiter for prosecution places the most sensitive cases that have been so painstakingly investigated to be determined by officials most susceptible of political interference. The end results are often delays and non-prosecution, which doesn’t help the already low public confidence enjoyed by these Commissions.

Giving them the power to prosecute would deter nefarious ways of stopping prosecution, because the power to prosecute is spread out among more people and not just one person or division.

Long-Term Reforms:

Appointing a Director of Public Prosecutions

In 2011, Minister in the Prime Minister’s Department, Nazri Aziz had expressed support for a call to separate the functions of the Attorney-General and the Public Prosecutor in different individuals.[2]

Modelling Australia, it is highly recommended that a separate position of Director of Public Prosecutions be legislated in the Federal Constitution. He would be directly and wholly responsible for issues of prosecution only. The Director of Public Prosecutions should be a person of highest calibre and integrity, appointed by a body comprising of representatives from the Judiciary, Bar Council, academics and civil society – free from Executive reach.

During the 1970s, the work of prosecution was almost entirely in the hands of Tun Salleh Abas, the Solicitor-General who was the de facto Public Prosecutor. This left the AG solely responsible on advising the Government, thus preventing any conflict of interest. This arrangement presents the most independent atmosphere possible for the Public Prosecutor, in terms of selection and execution of duties.

The Attorney-General as Cabinet Minister

In the United Kingdom and New Zealand, the AG is deeply committed to the policy of explaining prosecutorial decisions that engender public controversy in Parliament. This culture would hinder any political party at power from meddling with prosecutions, for it would be openly scrutinised, debated and could be politically damaging when Parliament convenes.

Considering that such a glare of publicity might even imperil a fair trial of an accused, statement of reasons could be delayed for so long as is required in the interest of justice.

In the brief period during Abdul Kadir’s tenure as the ministerial Attorney-General in the 1970s, there was a healthy atmosphere of fielding questions related to the work of the Attorney-General in and out of Parliament. [3]

Unfortunately, we can’t have the best of both accountability and independence. Ironically, attempts to cement independence for the Director of Public Prosecutions mean he is not a member of the Executive and is principally answerable to nobody, thus he cannot be truly held accountable. On the other hand, a ministerial AG must be accountable to Parliament and his party risks getting elected out of office, but you can be sure political acumen will guide his decisions.

Nonetheless, either of the two models is still better than the current practice of the AG shyly sticking behind the scenes – being neither independent nor accountable at all.

Ethics — Above All Else

At the end of the day, there is no substitute for ethics. We can implement all the safeguards we can for the honourable offices of judges, but as we can witness today, corruption and undue influence still creeps in.

Professor Edwards, an esteemed academic on the Attorney-General’s office, is understandably not convinced that any formal structure of government can guarantee the fulfilment of an impartial administration of justice. In his final analysis, it is the strength of character and personal integrity of the office-holder of AG which is of paramount importance.[4]

At the Opening of the Legal Year 2013, Attorney-General Tan Sri Abdul Gani Patail quoted Cicero: “The good of the people is the chief law.”

That rings true for those sitting on the thrones of public office, especially ones that command such far-reaching powers as the Attorney-General. But law recognises man’s fallibility to the temptations of power – that as noble as he can be, he is more than capable of abuse — from his own predispositions and that of the mighty Executive.

But in the advent of the 21^st century’s information revolution and a maturing Malaysian democracy, the courts, law societies and the media are increasingly claiming a right to supervise prosecutorial conduct. No public servant can escape the eye of public scrutiny today.

There is an inherent and immediate need to rectify the system so that the highest traditions of such office continue to be respected. Malaysia’s Rule of Law depends and thrives on the Attorney-General’s conduct.