The call by the G25 Group of Eminent Malays for the transfer of the prosecutorial powers of the Attorney-General to an independent office of the Director of Public Prosecutions deserves support and action by Parliament.
The G25 Group statement said:
“There is a fundamental conflict of interest in the functions and powers of the AG, which enables him to take action against national interests.
“It is poor governance that the AG is the legal adviser for the government of Malaysia and also the final arbiter on decisions to prosecute.”
The conflict-of-interest and the subordination of national interest to sectional and political interests that can arise as the result of the Attorney-General being vested with these two functions and powers has been most vividly and dramatically highlighted by investigations into the two mega-scandals of 1MDB and the RM2.6 billion “donation” in Prime Minister Datuk Seri Najib Razak’s personal banking accounts – resulting in the shocking sacking of the Attorney-General Tan Sri Gani Patail on July 28 amidst controversy that the Attorney-General’s Chambers was preparing to charge the Prime Minister Najib for corruption in connection with the 1MDB scandal, the dissolution of the multi-agency Special Task Force into the 1MDB scandal and the three-month stoppage of Public Accounts Committee from continuing its 1MDB investigations.
Putting aside for the moment the question of fact, Malaysians must wrestle with the question of law and whether under our present system, the Attorney-General can initiate prosecutions against the Prime Minister for corruption.
The G25 Group had not used this issue to ground its call for the separation of powers of the Attorney-General as the chief legal adviser of the government and the Public Prosecutor, but used instead the Attorney-General’s Chambers’ refusal to prosecute 1MDB for providing inaccurate information and failing to give full disclosure when it sought approval from Bank Negara for overseas investment.
This was despite the central bank’s recommendation for legal action against 1MDB,which was rejected by the Attorney-General’s Chambers.
It is noteworthy that this decision not to prosecute was made by the new Attorney-General Tan Sri Mohamed Apandi Ali who replaced Gani Patail as Attorney-General.
Would Gani Patail have approved Bank Negara’s recommendation for legal action against 1MDB?
Gani may be able to throw light on these two issues when he make his first public appearance since his sacking three months ago as Attorney-General at the Bar Council forum “SOSMA – Wolf in Sheep’s Clothing” in Kuala Lumpur on Tuesday night.
Malaysia will only be following the development of best practices in good governance in other countries, as the separation of the powers of Attorney-General as Public Prosecutor and chief legal adviser for the government is being practised by an increasing number of countries to avoid any public perception that political influence could be brought to bear on prosecutorial decisions.
Malaysia’s common-law traditions should not be an excuse for putting up with the risks of blatant abuses of power exemplified by the removal of Gani Patail as Attorney-General and the refusal to prosecute those responsible for the 1MDB scandal.
Canada in 2006 passed the Federal Accountability Act which delegates responsibility over prosecutions to a Director of Public Prosecutions. Such a Director is appointed by a committee including representatives from all political parties and the Canadian equivalent of our Malaysian Bar. Any directives by the Attorney-General to the Director must be in writing and be published in the Canadian Gazette.
Even the United Kingdom has seen calls for reform. In 2007, both the Constitutional Affairs Committee and its successor Justice Committee of the British Parliament strongly recommended security of tenure and delegation of powers over individual cases to prosecution Directors.
(Speech at the DAP Ceramah Kopitiam held at Stulang, Johor Baru on Saturday, 31st October 2015 at 2 pm:)