AG must explain prosecutorial actions, says lawyer

AG must explain prosecutorial actions, says lawyer

PETALING JAYA: A public prosecutor (PP) should provide reasons for his prosecutorial actions, especially when withdrawing charges against accused persons in high-profile cases, a lawyer said.

Rafique Rashid Ali said the PP or a deputy public prosecutor (DPP) could demonstrate transparency by furnishing to the court his reasons for discontinuing a case.

Alternatively, he should at least issue a media statement to explain his decision to the public.

“As the protector and custodian of public interest, the PP must be accountable to the people. This has been lacking among those who have held the coveted office in recent years,” he said.

As an example, Rafique said the attorney-general (AG) has remained mum for more than a year over deputy prime minister Ahmad Zahid Hamidi’s discharge from 47 corruption charges.

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In September last year, current AG Dusuki Mokhtar, the prosecuting DPP in Zahid’s case, told Justice Collin Lawrence Sequerah that he had instructions from the AG to discontinue proceedings as the Malaysian Anti-Corruption Commission was still investigating the matter.

Zahid, who had sent representations to the AG, had claimed he was the victim of selective prosecution practised by the previous regime.

Rafique’s observations came when commenting on former law minister Zaid Ibrahim’s call for the government to appoint an elected MP as attorney-general (AG) so that he is accountable to Parliament for his decisions.

Rafique said it may be improper for the AG to report the status of controversial cases to Parliament, as proposed by Zaid, as it may be tantamount to disrespecting the courts.

Administrative arrangement

Meanwhile, former Malaysian Bar president Ragunath Kesavan said Zaid may be suggesting that the AG limit his function to providing legal advice to the government and allow the solicitor-general to concentrate on all prosecutorial duties.

He said this was the administrative arrangement when both Abdul Kadir Yusuf (1963-1977) and Hamzah Abu Samah (1977-1980) were AG and Cabinet members.

“Both had legal backgrounds and delegated prosecutorial powers to the solicitor-general while limiting their duties to providing advisory services to the government,” said Ragunath, a former Bar president.

He said former lord president Salleh Abas, who served as solicitor-general between 1966 and 1979, concentrated on prosecutorial matters such as framing and withdrawing charges and handling appeals.

It was only after 1980 that the attorney-general actively took the role of public prosecutor as provided for under the Federal Constitution, he added.

“Presently, one cannot expect the AG to be an active public prosecutor due to the volume of cases in courts. He should delegate it to the solicitor-general,” Ragunath told FMT.

Ragunath said an official separation of the roles and functions of the AG and PP can follow when the necessary amendments are made to the constitution and related federal laws.

Conflict of interests

Lawyer Kitson Foong said a conflict of interests would arise when one person wears both the AG’s and PP’s hats.

He said the AG is the legal advisor to the government. However, in his alternate role as PP, he may be required to prosecute a member of the Cabinet.

The positions of the AG and PP must be separated to allow the PP to act without fear of favour in such instances.

On Saturday, Prime Minister Anwar Ibrahim said several cases which were commenced after the 2018 general election were flawed and commenced hastily with political motivations.

He said his Cabinet has agreed to a division of the functions of the AG and PP.

Anwar said a paper on the matter is being drawn up and is expected to be ready by the middle of next year.