Attorney-General or Pamphleteer-General? – A Reform Long Due (Part 1) by Lim Wei Jiet

Part 1 of this article examines the (utter) failure of our current Attorney-General in carrying out his duty to uphold the rule of law.

“For Heaven’s sake, give me a break and give the MACC a break. Give us a chance to prove ourselves.” – Tan Sri Abdul Gani Patail

Lawyer Tommy Thomas once asked: If Malaysians were asked of the most powerful person in Malaysia – who would it be?

“The popular answer would be the Prime Minister, while other likely candidates would include the Yang di-Pertuan Agong, the Home Minister, the Inspector-General of Police and the Chief of General Staff.

One would not expect the Attorney General to find a place in the list of most observers.”[1]

But law students would know better. The Attorney-General (AG) wields such a wide array of powers: sole legal advisor to the YDPA & Cabinet Ministers, enormous leeway in drafting Parliamentary Bills and being influential in judicial appointments. But his most pronounced power is found in Article 145(3) of the Federal Constitution: “The Attorney General shall have power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for an offence….”

Francis Bacon once described the AG’s position as “one of the painfulest places in the Kingdom”. The current AG, Tan Sri Abdul Gani Patail, wouldn’t disagree with the great Lord Chancellor – he is certainly no stranger to endless lashes of public criticism.

An analysis on this warrants a revisit to the AG’s extremely colourful past:

Failure to Press Charges amidst Overwhelming Evidence

In 2007, the Royal Commission of Inquiry into the V.K. Lingam Video Clip concluded that Datuk V.K. Lingam, Tun Ahmad Fairuz Abdul Halim, Tan Sri Vincent Tan, Tun Eusoff Chin and others had seriously undermined the independence of the judiciary by their actions of fixing the appointment and promotion of judges. More than that, the Commissioners found sufficient cause to invoke the Sedition Act 1948, the Legal Profession Act 1976, the Official Secrets Act 1972 and the Penal Code. Then Bar Council President, Ragunath Kesavan even highlighted that Lingam’s conduct of writing a judgment on behalf of a judge could easily fit into charges for cheating, conspiracy to abuse the justice system, fraud and contempt of court.

Yet, no charges were pressed. The reason? "Insufficient evidence”.

The same thing happened in the 2011 Royal Commission of Inquiry into Teoh Beng Hock’s death. There was clear evidence that Teoh Beng Hock “was driven to commit suicide by the aggressive, relentless, oppressive and unscrupulous interrogation MACC’s investigation methods” and even named one official as the “mastermind”.

Yet, the AG cleared the three officials named in the Commission’s report. Why? “Insufficient evidence”.

Mind you, these are not some wild allegations concocted by the Opposition, but findings by a legitimate and independent inquiry body set up by the government itself. As to why no charges were made, I have insufficient brain power to logically comprehend.

Biased Prosecution

In 2013, when PERKASA members, Ibrahim Ali and Zulkifli Nordin called for the burning of Bibles and mocked the Hindu religion respectively, no action was taken although those utterances were clearly within the ambit of s 3(1)(e) of the Sedition Act (i.e. “promote feelings of ill will and hostility between different races or classes of the population of Malaysia”).

But miraculously, all guns went blazing immediately where Tian Chua was charged for sedition in accusing that the fighting in Lahad Datu was a “planned conspiracy by the UMNO government”.

I guess in Malaysia, UMNO’s reputation is a greater necessity for public order than religious harmony. Who can blame the Human Rights Watch[2] and Aliran[3] for calling an end to such politically motivated charges?

“Don’t Look At Me – I’m Not the Only One Saying This”!

In 2007, Transparency International Malaysia demanded full public disclosure of the basis for the government’s dismissal of a litany of corruption allegations against former Anti-Corruption Agency director-general Zulkipli Mat Noor.[4]

In August 2012, Tan Sri Robert Phang Miow Sin, a former member of the Consultation and Corruption Prevention Panel of the MACC, accused the AG of “wasting public funds pursuing useless cases and closing an eye to cases that are really of public importance”. [5]

Lim Teck Ghee, Director of the Centre for Policy Initiatives (CPI), bluntly mentioned that the AG had “failed the test of impartiality and blind justice” and was “widely perceived to bend the law and manipulate the legal system in favour of the government’s interests”.[6]

Of course the AG must contemplate various issues before prosecution – whether there was sufficient evidence so as to not waste the Court’s time, setting a legal precedent, etc.

Despite that, all the above discussion has led to this irresistible conclusion: the Attorney-General has not been independent in executing his duties. Far from that, he displays egregious amounts of bias towards the ruling government on countless of occasions.

A Current Outlook – Same Old, Same Old

The question now is: After 12 years in power, has he had enough time to prove himself?

Recent developments don’t look promising at all. Among the headlines hitting the newsstands these last few months:

1) Former Kuala Lumpur CID Director Mat Zain Ibrahim mounts allegations of fabrication of evidence in the infamous 1998 “black eye” Anwar Ibrahim trial, citing a meeting with Mahathir Mohamad & lawyer Tan Sri Shafee Abdullah

2) Allegations of shoddy preparation and doctoring of photos that led to Malaysia losing Pulau Batu Puteh to Singapore in the International Court of Justice

3) Failure of the Prosecution to produce a material witness, one DSP Musa Safri, which led to the acquittal of Kpl Sirul Azhar Umar and C/Insp Azilah Hadri in the Altantuya murder case at the Court of Appeal

4) Another high profile acquittal of Tun Dr Ling Liong Sik at the High Court in role of the billion dollar PKFZ corruption scandal

If the Opposition had a Shadow Cabinet, I would be glad to take on the role of shadowing the Minister of Law or AG. One would have a field day finding faults and abuse of power.

But the more troubling question is: Why, despite all the solid evidence that he has utterly failed to execute an AG’s duties, is he still in power - surviving three Prime Ministers since 2002?

Many more questions beg answers: Why is he not accountable for his actions? Where is the transparency in the prosecution process? Should the Attorney-General even be granted such wide and arbitrary powers?

Part 2 of this Article will attempt to answer these questions, in an analysis of the deeply unsettling structural flaws surrounding the AG’s office.

[1] Tommy Thomas, “The Attorney-General – the Most Powerful Person in Malaysia?” (1983) 3 INSAF 20.

[2] Phil Robertson, “Malaysia: Drop Sedition Charges for Opposition Leader”, Human Rights Watch 10 April 2013, 5 May 2013 http://www.hrw.org/news/2013/04/10/malaysia-drop-sedition-charges-opposition-leader

[3] Aliran, “Civil Society Condemns Sedition Charge Against Tian Chua”, Aliran 9 April 2013, 5 May 2013 <http://aliran.com/12898.html>

[4] Transparency International Malaysia, “We want full public disclosure, TI tells AG”, Transparency International Malaysia 1 August 2007, 8 May 2013 <http://www.transparency.org.my/press20.htm>

[5] Teoh El Sen, “AG – BN Liability or Asset?”, Free Malaysia Today 3 August 2012, 4 May 2013 <https://www.freemalaysiatoday.com/category/nation/2012/08/03/ag-bn-liability-or-asset/>

[6] Teoh El Sen, “AG – BN Liability or Asset?”, Free Malaysia Today 3 August 2012, 4 May 2013 <https://www.freemalaysiatoday.com/category/nation/2012/08/03/ag-bn-liability-or-asset/>