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Monday, March 7, 2016

Separation of A-G, public prosecutor’s posts a priority, say lawyers

Separating the posts of attorney-general and public prosecutor should be a priority if the Citizens’ Declaration mooted by former prime minister Tun Dr Mahathir Mohamad becomes a reality, say a lawyers’ group and a former director of the anti-graft agency.

They said there was a conflict of interest when both positions were held by one person who was seen as unable to perform his duties professionally.

A clear example, they said, was the decision of Attorney-General Tan Sri Mohamed Apandi Ali not to act against Datuk Seri Najib Razak over the RM2.6 billion deposited into his bank accounts and RM42 million in relation to SRC International Sdn Bhd.  

Lawyers for Liberty executive director Eric Paulsen said such questionable decisions predictably brought further disrepute to the A-G’s office.

“This further enhanced public perception that the A-G gives preferential treatment while selectively prosecuting the government’s political adversaries and dissidents.”

He said these double standards were not surprising as the problem stemmed from the A-G’s dual role as legal adviser to the government and public prosecutor.

The perception against Apandi’s actions in clearing the prime minister was made worse as he was appointed to the job after Najib removed his predecessor, Tan Sri Abdul Gani Patail, under controversial circumstances.

Article 145 (3) of the Federal Constitution provides for the A-G as the sole authority to institute, conduct or discontinue any criminal proceedings in Malaysia. 

Paulsen said in several developed Commonwealth nations, the A-G ceased to exercise prosecution powers and such authority was vested in the director of public prosecutions who acted independently.

“In England and Wales, Canada and Australia, both the A-G and the director of public prosecutions are answerable to Parliament for their actions and decisions.

“The two offices of the A-G and DPP are generally considered independent of one another,” he added.

Former Malaysian Anti-Corruption Commission (MACC) director Mohamad Ramli Manan said the A-G not only represented the government of the day but also the state and the community as guardian of the public interest, justice and rule of law in his capacity as public prosecutor.

“This is, however, not possible when the A-G faces a conflict of interests in making prosecutorial decisions against members of the government,” he said.

Ramli, now a lawyer, said it was not necessary to amend the constitution and that only changes needed to be made to section 376 of the Criminal Procedure Code to give prosecutorial powers to the director of public prosecutions.

“Of course, we need to appoint a director of public prosecutions with impeccable credibility who will act without fear or favour,” he added.

Ramli recalled that in the early years after Merdeka, the A-G’s post was held by a minister and there was little interference from the executive as far as prosecution was concerned.

“This was because in reality, the function to decide on prosecution was left to the solicitor-general,” he said, citing instances of several politicians, such as former Selangor menteri besar Datuk Harun Idris charged with corruption.

On Friday, Dr Mahathir and more than 50 others who formed the core group as signatories to the Citizens’ Declaration called on the public to join them to remove Najib through non-violent and legally permissible means.

They also pledged to pave the way for much-needed democratic and institutional reforms, and to restore the principle of the separation of powers among the executive, legislature and judiciary to ensure the independence, credibility, professionalism and integrity of key national institutions.

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