August 4, 2012
The Attorney-General’s Discretionary Powers must be subject to Parliamentary Oversight
by Gobind Singh Deo*
Gobind Singh Deo speaks: Pakatan Rakyat should seriously consider decentralising the powers of the Attorney-General if it is elected into power.
At present the AG has sole discretionary powers in commencing criminal prosecution, under Article 145 of the Federal Constitution. The exercise of this discretion has, in the past and of late, become the subject of grave criticism.
Some have argued that certain prosecutions were politically-motivated. Others have criticised the A-G for failing to prosecute where criminal acts were obvious and argued quite convincingly that those decisions were likewise motivated, either politically or otherwise.
Some instances where prosecution have been criticised include the case 
involving DAP Secretary-general Lim Guan Eng who came to the defence of an underaged Malaysian girl who alleged that she was sexually violated. Lim was charged with sedition and subsequently imprisoned for 18 months after conviction.
Then there is the case of DAP chairperson Karpal Singh, who is currently charged with sedition for merely reiterating a legal opinion.
And we could take the case of PAS deputy president Mat Sabu, who has been charged with criminal defamation. His accuser, it is said, openly retracted his complaint against him in court and apologised to him.
Recently, we have the charge against PKR’s Rafizi Ramli and another in connection with the National Feedlot Corporation scandal. This is even more disturbing as it smacks of utter disregard on part of the A-G of and concerning the need to protect whistleblowers, thereby thwarting efforts by Parliament to encourage members of the public to take part in the fight against corruption.
‘World’s best democracy’ a mockery
The charges against Rafizi can also be seen as an affront towards the ‘reformist’ Najib Abdul Razak administration. It also makes a complete mockery of the Prime Minister’s promise to make this country “the world’s best democracy”. These are just a few of very many examples.
Pakatan Rakyat must, just like it hopes to achieve in all other areas of governance, introduce transparency and accountability into the field of decision-making in the criminal justice system.
This may be a somewhat radical departure from the conventional norm but there are compelling reasons justifying its inception.
Some of the suggestions include the setting up of a committee to which complaints can be made when persons are charged or not charged, which will have the power to review decisions of the A-G.
It may be important to also consider making it compulsory for this committee to report to Parliament every year, so that there is greater scrutiny and balance in its handling of complaints.
Another way would be to legislate to empower courts to determine whether or not certain decisions to prosecute are tainted and therefore liable to be set aside.
The reverse would apply where no decision to prosecute is taken when the evidence of an offence and of the perpetrator are overwhelming. The short of it is we must recognise that there is a need for the office of the A-G and his powers to be revamped.
At present the AG seems to be cold to criticism. Complaints against him are many but his responses hardly, if any. This is perhaps because the AG is clothed with absolute power under the Federal Constitution.
This is the exact mindset that needs to be corrected. The A-G must be put in a position where he can be called upon to explain. Opening his decisions to review will ultimately plant a greater sense of responsibility on his part in the exercise of his duties as the Public Prosecutor.
*Gobind Singh Deo is the Member of Parliament for Puchong and a strong advocate of Good Governance and the Rule of Law.
Bean, can you explain the powers and responsibilities of the US Attorney-General, who is a member of the Cabinet. He is not free to do what he likes. Even his appointment has to be confirmed by the Senate.
I remember the much respected Eliot Richardson who was the Attorney-General in the Nixon Administration. He was tough on Richard M. Nixon on the Watergate Issue. Even the US President is not above the law since he can be impeached by the Senate. –Din Merican
Judges have this residual disretion given to them under the common law. They always do. It does not have to be by statute. But that does not mean they can exercise that discretion every which way. It has to be “in the interest of justice”. Similarly, the discretion given to the country’s top prosecutor under Article 145 of the Federal Constitution is not absolute. Anywhere else he would have been charged with abuse of prosecutorial discretion (and prosecutorial misconduct in the way he conducted his prosecution) and would have been disbarred.
There is always the impeachment process available at common law.
In the U.S. we have the Doctrine of Separation of Powers.
But Article II of the Constitution grants Congress the power to impeach “the president, the vice president and all civil officers of the United States.” The phrase “civil officers” includes the members of the cabinet. And the U.S. Attorney General is one.
We have seen all too clearly that neither parliamentary oversight nor any doctrine of separation of powers works, especially in a country like ours, if an otherwise legitimately elected government decides to use its majority to steamroll almost anything it finds convenient.
Mature democracies, too, are only now waking up to this reality… after considerable pain.
That is why we should do away with current Upper Houses and look seriously into parallel elected systems – one to carry on the day-to-day running of government and the other to be an elected (and hopefully effective) watchdog.
I cannot see any other system working.
So Mr. Deo’s suggestion is simply more of the same failed system.
No No Mr. Gobind. Parliament must only have the Powers to appoint an Independent Prosecutor or aTeam of Independent Prosecutors to look into the matter. And there must be safeguards agaist setting up a Group like the ones that have taken to task judges who have been classified as “unfriendly ” by the party in power. Going form the present system to the one suggested by you will be going from the frying pan into the fire. There is no guarantee that the ‘new government’ will not abuse the powers entrusted by the people. We need strong institution of Government that will protect the powers of the voters and not those that will render the people powerless once they have placed the cross on the ballot paper.
Hence, anyone who wants to come with a new idea must come clean.
“… government that … will protect the powers of…people…and not render… (the) people powerless once they (have voted)…” THUMB LOGIC
Exactly.
“Hence, anyone who wants to come with a new idea must come clean.”
If you seek to do equity, you must come with clean hands. And right now everybody’s hands are dirty. Kathy would never kiss any hand. She says she doesn’t know where that hand has been.
“That is why we should do away with current Upper Houses and look seriously into parallel elected systems – one to carry on the day-to-day running of government and the other to be an elected (and hopefully effective) watchdog.” Isa Maneqi
You can be excused for thinking that keeping a Rottweiler would keep robbers away from your house.
A step in the right direction will still always leave imperfections… so a watchdog along the lines suggested is not going to keep robbers away but will be better than the current routine and blatant disregard to the general wishes of the electorate.
Any better ideas, anyone?
Adding layer of bureaucracy is not going to help. The present Senate is appointed. I’m not sure of their tenure but it is open to abuse and is nothing more than a rubber stamp. It has no power to stop a bill passed by lower House from becoming law. Have a fully elected upper House – two from each state for a 2-yr term. Make it law that a Bill has to be passed by both Houses to become law.
That is just for starters.
Adding a layer of bureaucracy? No you do not… not if you abolish current unelected members and replace them with an elected body.
But this in itself will not suffice to keep politicians on a tight leash. The new (much smaller than current one) body will also need to be given a watchdog/Ombudsman responsibility that will respond to individual citizen’s concerns.
WE are again in a debate of trying to change the system. Yes, you can put in place the best system and it will still be abused by the so-called 20% of bad apples. What we need is a system that can weed the “crooks” out of the system by administrative or legal means. And we have to act quickly because if 1% of expenditure to boost GDP goes into corruption it will cause a 1% annual reduction in the GDP of the nation.