Separate the Attorney-General’s powers to correct a flaw in Malaysian legal system !

Tan Sri Abdul Gani Patail

Revise Attorney-General's powers

There is a flaw in our system, inherited since before Independence, that may prevent the public from giving their complete trust.

THE political challenges faced by Datuk Seri Najib Tun Razak continue to mount. He has issued several denials but his detractors are showing no sign of stopping.

Last week, internationally respected newspaper The Wall Street Journal published a story alleging that money from 1MDB somehow found its way into Najib’s personal bank accounts. Najib has denied any wrongdoing and he is said to be mulling legal action against the newspaper.

The response by Attorney-General Tan Sri Abdul Gani Patail is particularly noteworthy.

According to Gani, a multi-agency task force will probe the allegation, looking into the trail of money from 1MDB and examining if there has been any wrongdoing.

Even though Gani did not spell it out word by word, the implication is that our Prime Minister has not stopped agencies in his own Government from conducting what could become a criminal probe against him.

This is a healthy step and it is also the right decision by the Prime Minister. The whole saga has been a protracted one and I look forward to its conclusion.

According to reports that cited Gani, the multi-agency investigation team comprises the Malaysian Anti-Corruption Commission (MACC), the police and our central bank, Bank Negara.

I welcome the formation of this special team. It is imperative that all allegations are investigated thoroughly. To do so does indeed require cooperation from various agencies.

Having said that, I have a concern about how the public will react once this team concludes the investigation.

The most important element in any probe that involves public figures is public confidence. For the public to accept the outcome of the investigation, they must believe in the integrity of the agencies.

Unfortunately, there is a flaw in our system that may prevent the public from giving their complete trust. We inherited that flaw since before Independence and until today we have never tried to fix it.

The flaw centres on the dual roles of the Attorney-General. He is the principal legal adviser to the Government and he is also the one with sole discretion to decide whether or not to prosecute.

Yes, there are safeguards to ensure he makes prosecutorial decisions with independence and integrity. But that is a matter of procedures.

We are talking about a high-profile investigation where public confidence and public perception are just as important as everything else.

Imagine a situation where the investigation team finds that the allegations are false. They then submit their files to the Attorney-General.

The Attorney-General then would logically decide that there will be no prosecution. How will the public react to this?

My worry is that the public will simplistically say that we are seeing a cover-up. Of course, we will not know the detailed findings from the investigation and we can’t expect the agencies to be disclosing information in great detail either.

But we may end up with the public accusing the Attorney-General of merely protecting his boss whom he has been advising all this while. That would be most unfortunate.

However, we cannot blame the public for not fully trusting the system. Stories after stories have been told – whether concocted or true – about allegedly selective prosecution.

In our work on the MACC, we encountered many of these allegations. Critics target the MACC even when the agency has done its job to investigate, without realising that prosecution powers lie with the Attorney-General and not the MACC.

And among those who do know that prosecution is the discretion of the Attorney-General, a perception has developed that some people are always safe from prosecution, because they feel the Attorney-General has a conflict of interest. How can he be expected to prosecute the very people he is supposed to advise?

The fusion of the Attorney-General’s roles – as legal adviser to the Government and as public prosecutor – has resulted in decreased trust in the integrity of the system.

In cases that involve the Government, the public may not have full confidence in his decisions regardless of whether or not he is being independent and honest. And this time, it may result in a never-ending misery for the Prime Minister even if he is a victim of political sabotage.

I fully appreciate that the Prime Minister and the Attorney-General have thousands of other things to worry about at this moment in time. But for their own sake, this is a most urgent issue. The credibility of the Prime Minister is at stake here.

The roles of the Attorney-General must be separated. The Attorney-General should continue to advise the Government but we should create a new Public Prosecutor’s Office to decide on prosecution after the investigative agencies have done their jobs. This has to be done as soon as possible.

I appreciate that this is a major step. It requires a constitutional amendment because Article 145(3) of our Federal Constitution currently provides that the Attorney-General has absolute power to institute, conduct or discontinue any proceedings for an offence.

Additionally, the Criminal Procedures Code too will need to be amended because it currently says: “The Attorney-General shall be the Public Prosecutor and shall have the control and direction of all criminal prosecutions under this Code”.

The changes should be debated in this parliamentary meeting. If this is not done now, will anyone be able to save the Prime Minister’s credibility, regardless of what the investigation team finds?

Wan Saiful Wan Jan is chief executive of the Institute for Democracy and Economic Affairs ( www.ideas.org.my). The views expressed here are entirely the writer’s own.

By Wan Saiful Wan Jan thinking liberally

Related posts

Sue or don't sue WSJ's report: RM2.6bil was moved to PM Najib Tun Razak's bank accounts?

KUALA LUMPUR, Malaysia—Malaysian investigators scrutinizing a controversial government investment fund have traced nearly $700 million ...

 Fighting corruption must be serious !

Stupid fellow ! Dr Ling, former Malaysian Transport Minister slams Attorney-General

Stupid fellow ! Dr Ling, former Malaysian Transport Minister slams Attorney-General. UTAR Council Chairman Tun Dr Ling Liong Sik speaking to the media regarding UTAR Initiatives and Developments at the Sg Long Campus, Kajang on Tuesday. KAJANG: There was nothing wrong in the land purchase for the Port Klang ... It's only the A-G (attorney-general who) thinks it's a wrong decision. Stupid fellow,” he said at a press conference here yesterday to announce ...

Beware of rogue lawyers in Malaysian legal system

They boast of connections with retired judges and being able to fix cases

KUALA LUMPUR: A group of lawyers is bringing disrepute to the Malaysian legal system with claims of being able to “fix” commercial cases.

They are known as the “Dream Team” in the circle of retired gentlemen judges because these lawyers “play ball” with their “coach”, a retired judge, to win big.

Among litigation lawyers, they are referred to as the “syndicate” or “cartel”.

Malaysian Bar president Lim Chee Wee confirmed their existence.

“We are aware of a syndicate of rogue lawyers who boast of mastering the art of influence and inducement outside the courtroom in addition to advocacy in the courtroom,” he said.  “Mercifully, it's a small group.”

He added that the commercial cases they boast of being able to influence include disputes over business contracts and family property and company disputes between shareholders and directors which usually involve millions of ringgit.

Lim, however, stressed: “The vast majority of judges and lawyers are honest, and it is only a few rotten apples who ruin the reputation of the rest.”

He was also doubtful about many of the claims they made, suggesting that “most of their boasts might be mere puffery to trick clients into paying more in legal fees”.

But for some years now, litigation lawyers have been indignant about “the cartel” and the connections they see between some retired judges and lawyers.

They say a retired judge acts as puppet master and a former court officer at times comes in as facilitator.

Litigation lawyers interviewed on the modus operandi of the syndicate gave these scenarios:


> A client contacts a retired judge who then gets in touch with a serving judge.

> While in office, the former court officer would arrange for access to certain judges.

> The former court officer takes advantage of the practice of registrars writing up case notes for appellate judges by suggesting how to skew them.

Asked what action the Bar Council had taken, Lim said it had told Tun Zaki Azmi when he was Chief Justice and his successor Tun Arifin Zakaria of reports that “a few judges received phone calls from retired judge(s) regarding pending cases, allegedly with a view to influencing their decision or grounds, and naturally these right-thinking judges found such approaches to be offensive.”

“The Chief Justices have taken action and I am not aware of any more similar incidents.”

Lim said he had also raised with the Chief Justice and President of the Court of Appeal the Bar's concern over reports that a few rogue lawyers may be influencing registrars who prepare case notes/briefs for appellate judges “with the view of having the contents lean in their favour”.

When contacted, a sitting judge said: “The solution is for all appellate judges to carefully read the written submissions of both counsel and not rely on the case notes.”

Lim said that following media coverage of corruption in the legal system, the council has been receiving information from Bar members and the public.

“We will review the information and if there is prima facie evidence, we will lodge a complaint with MACC (Malaysian Anti-Corruption Commission).”

Lim added: “We are also working closely with MACC to investigate corruption among lawyers who bribe officers/employees of clients to obtain legal work. This is perceived as a rampant practice at financial institutions.

“We hope that the Association of Banks Malaysia will consider assisting MACC on this.”

He urged anyone with any information on the who, what, when and where of corruption to write to president@malaysianbar.org.my or contact +603 2050 2013.

By SHAILA KOSHY koshy@thestar.com.my

Related posts:

 Violent lawyer' may face action

Ethics vital for lawyers! Force to sign documents & hit client?