REMOVE PROSECUTION FROM THE ATTORNEY GENERAL’S POWERS 

By Wan Saiful Wan Jan, first published in Sinchew Daily, 8 February 2016

 

Let me start this week’s article by wishing readers a happy and prosperous new year.  I hope we will have a better time in the new year.

Lately the Attorney General Tan Sri Apandi Ali has been in the news quite a lot.  Just a few days ago he was quoted in Sinchew Daily saying that he is unhappy about leakages of government secrets.  He was even quoted to have said “In some countries leaking official secrets is a serious offence such as China where it carries the death sentence.”

It is understandable that official secrets must be protected.  But targeting just those who leak sensitive information is the wrong move.  Let me remind Apandi that China executes not just those who leak official secrets.  The list includes those found guilty of financial fraud and illegal fund raising too.

However to be fair, I think Apandi’s challenges are much bigger.  He has to climb a very steep mountain to gain public trust because the trust deficit against him is enormous.

It does not matter if he is the most honest and the most professional person on earth.  Public perception is not with him.  Many are alleging that he was appointed solely to close the investigations surrounding the Prime Minister.

It does not matter if this allegation is slander.  The criticisms against Apandi are getting louder by the day and no matter what he does some people will continue to not trust him.

To me the root cause of this situation is the potential conflict of interest that exists in the office of the Attorney General.  It is not about Apandi personally.  I am pretty sure that whoever is appointed as the Attorney General will suffer the same fate as Apandi today because of that conflict.

The conflict of interest is caused by the fusion of two roles into one office.  The Attorney General provides legal advise to the government and at the same time decides whether or not to prosecute a case.  The conflict would occur if the person being investigated is in government.  If the Attorney General is advising that person in government, many people will doubt his independence when deciding whether or not to prosecute that same person.

This situation is bad for both the Attorney General and the person in question.  The Attorney General will face criticisms even if he is acting professionally and honestly.  While the person in question will continue to be doubted even if there is truly no case against him.

We inherited our legal system from Westminster.  But Westminster itself has introduced a mechanism to avoid this conflict of interest.

Over there, the Attorney General is a political appointee, usually a Member of Parliament, appointed by the Prime Minister to be part of government.  He acts as the chief legal advisor to the government.  But a separate body that is operationally independent from the Attorney General makes prosecution decisions.  The Attorney General does not influence prosecution decisions other than in a very small number of offences.

Australia too separates the two roles.  Similar to the United Kingdom, the Australian Attorney General is a politician whose role is to advice the government.  But prosecution is decided by the Director of Public Prosecution who operates independently from the Attorney General and the political process.

For countries that seriously want to ensure that justice is done and is seen to be done, the roles or Attorney General and Public Prosecutor are separated from one another.  This is the direction that we should take to give credibility to prosecution decisions.  As long as the Attorney General holds the power to decide on prosecutions, the problems faced by Apandi today will continue to be faced by all future Attorneys General, regardless of how honest they are.

It is for this reason that we at IDEAS together with the Malaysian Bar, the Centre to Combat Corruption and Cronyism (C4), Citizens’ Network for a Better Malaysia (CNBM), and Transparency International Malaysia (TI-M), have produced a set of recommendations on how to strengthen the fight against corruption.  The full proposal is available for download from our website and it includes a call to take away prosecutorial decisions from the Attorney General and the creation of a new Office of Public Prosecutor.

We hosted another meeting of these NGOs at our office last Friday and we decided that we must raise awareness about the importance of separating these two roles.  We are now fleshing out the detailed steps that must be done to separate the functions.  Hopefully we will be in a position to release more information within the next few months.

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