By LONE RANGER
COMMENT: The recent withdrawal of corruption and money laundering charges against Tan Sri Musa Aman by the Federal Attorney General calls for immediate reforms to the role of the Attorney General.
Currently, the Attorney General has two separate and distinct roles. He is both the principal legal adviser to the Government and also the Public Prosecutor.
As the Public Prosecutor, he has discretionary prosecutorial powers conferred by Article 145(3) of the Federal Constitution, which have been defined by the courts to be absolute and unfettered.
Therefore the avenues available to review a decision of the Attorney General to either prosecute or discontinue criminal proceedings do not exist in Malaysia.
The Attorney General is required to act independently and impartially, and to act as the guardian of the public interest, uninfluenced by any political considerations.
He thus finds himself in an unenviable and arduous position of conflict of interest from time to time, when the interest of his client — the Government of the day — may not fully coincide with the public interest.
Past experience has shown that such situations would arise not infrequently, such as when it is recommended that a public official or politician be prosecuted for an alleged offence.
It is therefore crucial to separate the office of the Attorney General from the office of the Director of Public Prosecution, with the Attorney General only acting as adviser to the Government, and a separate Director of Public Prosecution making decisions on matters of prosecution.
The removal of the public prosecutorial role from the Attorney General is a necessary step to strengthen the independence of public prosecutors, and to promote public confidence in the office of the Director of Public Prosecution. The prospect or appearance of bias would thus be removed.
In the United Kingdom, the Attorney General there superintends the Crown Prosecution Service, which is the office of the Director of Public Prosecutions [DPP].
As the Attorney General in the UK is a member of cabinet, he is answerable to Parliament regarding the decisions of the DPP.
Apart from matters of national security, the Attorney General in the UK cannot direct prosecution and is not consulted regarding cases involving politicians or ministers.
It is believed that in Malaysia the Committee on Institutional Reforms formed by the previous Federal Government had made recommendations for constitutional amendments to give effect to the separation of the two roles of the Attorney General.
Notwithstanding the change in Federal Government, the pursuit of institutional reform to create a separate office for a Director of Public Prosecutions, vetted and recommended for appointment by Parliament with the security of tenure must continue to ensure public confidence is maintained.
These reforms would assist to avoid a reocurrence of the recent controversy involving the decisions of the Attorney General to permit a discharge not amounting to an acquittal of Datuk Seri Najib Razak’s son, Riza Aziz and a complete acquittal of Tan Sri Musa Aman of the earlier criminal charges made against them.
* Lone Ranger is the pseudonym of an avid BorneoToday reader who requested anonymity.