Attorney General, The Superman of Malaysia?

Considering the implications of the Attorney General’s wide discretionary powers and why even the humblest citizenry ought to be more vigilant towards any abuse of those powers.

Recently, a few of my clients who needed criminal law advice asked me a similar question.

Question: “If there is no clear evidence, why are the police still pressing charges?”
This question is conceptually incorrect as you may already know that the police has no authority to determine whether to press charges or otherwise. Telling them the police has no power to do so, does not really clear their doubts and I took the opportunity to explain to my clients that only the Attorney General (AG) can decide who, when and where to prosecute.

My client responded, “In that case, isn’t he the superman of Malaysia?”

Answer: “Well, that is quite subjective but if someone were to look into the context of the Federal Constitution, the answer is yes.”

So who is this AG and why is his office so powerful?

The AG is an individual appointed by the government of the day to carry out legal affairs of the government.

His main responsibilities are:

(a) Chief legal adviser to the Government;

(b) Guardian of the rule of law; and

(c) Superintendence of the prosecuting departments.

Article 145 of the Federal Constitution provides amongst others:

- It shall be the duty of the Attorney General to advise the Yang di-Pertuan Agong or the Cabinet or any Minister upon such legal matters, and to perform such other duties of a legal character, as may from time to time be referred or assigned to him by the Yang di-Pertuan Agong or the Cabinet, and to discharge the functions conferred on him by or under this Constitution or any other written law.

- The Attorney General shall have power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for an offence, other than proceedings before a Syariah court, a native court or a court-martial.

There is an existing argument that the AG should be made accountable to Parliament and his office be granted access to the members of parliament from the opposition which I do not wish to dwell into at this moment.

What I wish to elaborate is the extensive powers of the AG affecting the lay man on the street.

To have a better understanding of Article 145(3) of the Federal Constitution, I have dissected this section into 3 parts: institute, conduct and discontinue.

Power to Institute

The word “institute” in this context has been judicially examined in PP v Lim Shui Wang & Ors [1979] 1 MLJ 65 where Suffian Lord President observed that “the word institute” means “to set on foot, initiate, start,” and in Public Prosecutor v Datuk Harun Bin Haji Idris [1976] MLJ 116, the judge refers it to the “commencement of proceedings and prosecutions.”

For a lay person like you and me, it simply means that the AG has a discretionary power to decide whether to charge a person or otherwise. Conversely, the police do not have the power to determine whether to charge but were only limited to investigating duties.

In practice, it is then translated to this – after a complainant made a police report, his/her matter will be referred to an investigating officer (IO). An investigating paper (IP) will be opened and upon completing investigation, the IP will then be sent to the office of the AG. The Deputy Public Prosecutor who were delegated certain powers of the AG, upon examining the IP will decide whether to charge or otherwise.

To illustrate the discretionary power to institute proceedings, it is interesting to contrast the 2 high profile cases of Dato’ Seri Anwar Ibrahim and Datuk Seri Dr. Chua Soi Lek. Notwithstanding that both of them have police report made against them for committing carnal intercourse against the order of nature, one is facing a charge in the High Court while the other is claiming the throne of MCA.

Both are investigated under a similar section under the Penal Code which states:

"Any person who has sexual connection with another person by the introduction of the penis into the anus or mouth of the other person is said to commit carnal intercourse against the order of nature."

But both of them obviously do not share similar fate.

Power to conduct

Power to conduct may not be as controversial as the former but remains important as it gives the AG’s office the exclusive right to prosecute and conduct proceedings. The consequence of this ruling is to deprive the prosecuting officers of other government agencies to conduct prosecutions unless authorised in writing by the AG’s office.

Power to discontinue

The most obvious manifestation of this aspect of the AG’s powers would be the outright withdrawal of charges in cases pending before the courts. If you could recall, the most recent one was after the High Court acquitted a political analyst of abetting the murder of a Mongolian woman, prosecutors from the AG’s office decided not to appeal against the verdict. This has attracted much criticisms from the society but as far as the law is concerned, the AG’s office has not contravene any of the laws in Malaysia on the contrary has complete powers to not appeal against the decision of the High Court Judge.

Unease over the AG Chambers is a widely share sentiment among many Malaysians. The Rakyat yearns to see more reforms are carried out to curtail its wide discretionary powers. The powers although granted by the FC should not be exercised arbitrarily. Many have suggested that the AG should be made accountable to Parliament and to also consider in establishing a position similar to that in other Commonwealth countries where the power to review evidence and conduct the prosecution of offences is held by a director of public prosecution.

No matter what the reforms are, I believe that it is the tax-payers’ funds that ultimately pay for all criminal prosecutions and hence we should take personal interest in getting to know more about the AG’s powers and be vigilant towards the abuse, like how most of us are drawn in to the powers of superman, a man of steel who would only use his super powers to save the world, and nothing else. — www.loyarburok.com

Graft causing FDI drop

KUALA LUMPUR, March 16 — Datuk Seri Anwar Ibrahim has claimed the Barisan Nasional government’s poor governance and “endemic corruption” are behind falling foreign direct investment (FDI) in Malaysia.

The parliamentary Opposition Leader made the accusation in Parliament when asking the international trade and industry minister to explain the reasons behind the FDI drop despite liberalisation in several service sectors.

“Some important considerations have to be taken into consideration. Based on an Unctad report on December last year, the ability of Malaysia to attract foreign investments has dropped from number 62 to 66,” Anwar (picture) said after the ministry’s reply.

He then cited reports which, he claimed, proved Malaysia’s drop in standing.

“Malaysia’s figure stands at RM22.1 billion, while Singapore RM75.5 billion. Thailand and Indonesia have recorded RM27 million each.

“Why is Malaysia now trailing behind countries which were once behind Malaysia in development?” asked Anwar.

The minister, Datuk Mustapa Mohamad, charged that Anwar’s claims were misguided and that Malaysia’s economy was steadily improving.

“The economy of the country is stabilising. The unemployment rate dropped 3.6 per cent last year,” he replied.

He maintained that what is happening in the country is an increase in competitive spirit.

“Things have become more competitive, but this does not mean the economy is declining,” said Mustapa.

The minister then pointed out that positive measures have been taken by the government to ensure foreign investors come and invest in the country.

“If there is no pull factor, why do so many Japanese companies want to invest here?” asked Mustapa.

PKR plagued with corrupt culture

By Neville Spykerman

PETALING JAYA, March 16 — A penchant for corrupt practises and desire for top posts is plaguing PKR as disgruntled members demand a bountiful payback for supporting the party to historic wins in Election 2008.

Selangor Mentri Besar Tan Sri Khalid Ibrahim warned that Umno’s culture for largesse is entrenched in PKR and the party’s reform agenda is being hamstrung by their own members.

“Please, this is a culture of 50 years which cannot be changed in 700 days.” said Tan Sri Khalid Ibrahim, when asked why PKR members were still insisting on handouts and behaving no better than political rivals Umno.

The mentri besar said changing the old mind set would take time.

He acknowledged there were those who joined the party so they could use it as their own platform and some were disgruntled because he was not giving them land and approving their projects.

“I have taken a stand that we cannot give preference for contracts and allocations to our members.” he said, while explaining that a difference must be drawn between state administration and political parties.

Khalid points out it was for good reason that voters in Selangor gave their mandate to Pakatan Rakyat (PR) in the general elections two years ago.

“They wanted change. A democratic, efficient administration and we are delivering.”

Two days ago, while concluding the PKR Kuala Selangor division Annual General Meeting (AGM) Khalid told his members that the party could not accept those who joined for ‘benefits’.

He reiterated that PKR stood for reform and his administration wanted to break away from Barisan Nasional’s (BN) old politics.

“In the past, they could do what they wanted and give contracts to those who they wished. But we will ensure that all will get an opportunity and no one will be left behind.”

However on the ground, Khalid’s noble intentions and prudent fiscal policies are being criticised by those who expect payback for their loyalty to the party.

“When we were the opposition (in Selangor) I had to use my own money to fund party activities but now that we’re the government, I’m still using my own money.” said a grassroots’ disgruntled party leader who spoke on condition of anonymity.

He added while the public may be happy with the mentri besar reform policies, there are grassroots members who are unhappy with his tight grip on the purse strings.

This was demonstrated during the AGM on Sunday, when disgruntled members attempted to halt the meeting (AGM) after claiming it was unconstitutional. The meeting continued after it was put to a vote.

In January, 11 division committee members, including the Youth and Wanita chiefs, resigned after claiming they have lost confidence in Khalid’s leadership.

Ex-PKR lawmaker says more will quit soon

By Clara Chooi

KUALA LUMPUR, March 2 — A former PKR lawmaker fuelled speculation that more will quit Datuk Seri Anwar Ibrahim’s party, saying this included MPs and state assemblymen.

The lawmaker, among five who left PKR since Election 2008, told The Malaysian Insider last night that “future defectors” had called him for advice.

“They wanted to know what it was like and they wanted my advice. They wanted to find out what I had faced,” he said on condition of anonymity.

In the past two weeks, Penang MPs Datuk Seri Zahrain Hashim (Bayan Baru) and Tan Tee Beng (Nibong Tebal) had walked out of PKR citing dissatisfaction with the leadership, party and ally, Penang Chief Minister Lim Guan Eng.

The two outspoken MPs were the most high-profile resignations followed by that of former PKR secretary-general Datuk Salehuddin Hashim and ex-Penang Deputy Chief Minister I Mohd Fairus Khairuddin.

The former PKR lawmaker revealed that the number of those walking out of PKR was larger than many expected, adding it was not planned as a group but as individuals.

“Each have their individual grievances and reasons on why they want to leave from PKR. I understand their positions — the decision is not an easy one to make.

“But it is not like a planned move for all to leave, like what people think. For example, person A does not know that person B wants to leave too,” he said.

He added that he could not reveal the names of those who want to leave as that would not be fair to them.

The lawmaker also rebutted claims that the defectors were being bought over by the ruling Barisan Nasional federal government, stressing that they had genuine reasons for wanting to leave.

“When they called me, they never once asked me how much I had gotten from Barisan for leaving,” he said.

Instead, the lawmaker revealed that the general consensus was that most were unhappy with the direction that the party was heading and had lost confidence in its leadership.

“I cannot say exactly that they all blame (party de facto leader Datuk Seri) Anwar Ibrahim entirely, but they all feel that PKR has lost its way and lost its very basic ideals.

“They all believed in PKR’s struggles and ideologies and they still do but it looks like at the present moment, these struggles have become very individualistic and personal,” he said.

He noted that some also believed that the PKR was not a strong enough voice in the Pakatan Rakyat.

“It is either Anwar has failed to give good advice to the other Pakatan parties or that the other Pakatan parties refuse to listen to his advice,” said the lawmaker.

He added that over the past few months, he had been contacted by many lawmakers, both MPs and state assemblymen alike, all voicing their individual frustrations in the party.

“Some have problems with their respective division leaders or state leaders or the general party leadership too,” he said.

He told The Malaysian Insider that the defections would come soon but would not happen en bloc.

“It will be one at a time. You wait and see,” he said.

The defections of the two Penang MPs have triggered speculation that another 10 MPs and several other assemblymen would follow suit.