September 12, 2014
The current Attorney-General should heed the advice of Tan Sri Abu Talib who was the Public Prosecutor and Legal Adviser to the Malaysian Government (1980-1993). Article 145 of the Malaysian Constitution was designed to ensure that the Attorney General can carry out his duties without interference from external parties. He has been given complete discretion and like any judge, he cannot be removed except by impeachment.
Because of this, he has awesome responsibility to ensure justice is done, and done without favour to sectarian interests. That security of tenure does not allow him to do as he pleases. Therefore, the A-G must diligently examine and weigh all the evidence before him as his decision to prosecute affects an accused’s reputation, dignity and honour.
Why put someone through an emotional due process grinding mill without ensuring that the case for the prosecution is rock solid! Respect the Rule of Law and do Justice so that we Malaysians do not have to live under a climate of fear and be subjected to selective and arbitrary prosecution . –Din Merican
A Reader of this blog asked me this question: Can the A-G, Tan Sri Gani Patail, be sued? Absolutely yes! Not only that, the A-G can be removed from his post by impeachment. Lawyer Rosli Dahlan has done it and succeeded against the Malaysian Anti-Corruption Commission (MACC), headed by Tan Sri Abu Kassim, which had to pay him RM150,000. He then sued the A-G for abuse of process, public misfeasance and malicious prosecution.
The A-G’s trusted friend Lawyer Tan Sri Cecil Abraham (of the PI Bala fame) tried to block it by applying to strike out Rosli’s suit. Judicial Commissioner Vazeer Alam Mydin Meera slammed the A-G. Is that why this Judicial Commissioner is not confirmed as a Judge?
So, Rosli Dahlan has shown the way and now all those charged by this despicable A-G Gani Patail should sue him based on what former A-G Abu Talib says: “To charge a person is a very serious matter as it affects the accused’s credibility, standing and dignity”.–Din Merican
September 12, 2014
Advice from Former Attorney-General: Do Justice by prosecution and not persecution
by V. Anbalagan, Assistant News Director, The Malaysian Insider
“There are doubtless those who would wish to lock up all those who suspected of terrorist and other serious offences and, in the time-honored phrase, throw away the key. But a suspect is by definition a person whom no offence has been proved. Suspicions, even if reasonably entertained, may prove to be misplaced, as a series of tragic miscarriages of justice has demonstrated. Police officers and security (and public) officials can be wrong. It is a gross injustice to deprive of his liberty for significant periods a person who has committed no crime and does not intend to do so. No civilized country should willingly tolerate such injustices.” ― Tom Bingham, The Rule of Law
The barrage of sedition charges against opposition lawmakers and others is seen as “persecution” and not prosecution, says Tan Sri Abu Talib Othman, who took a swipe at the Attorney-General for reviewing the cases after charges were framed.
Prosecute, Not Persecute, says Abu Talib
Talib, a former A-G, said it was unusual for Tan Sri Abdul Gani Patail, who is also public prosecutor, to first frame charges and later, decide to review them.”You must do justice by prosecution and not persecution,” Talib told The Malaysian Insider in a special interview in Kuala Lumpur yesterday.
Talib, who was A-G between 1980 and 1993, was commenting on Gani’s statement on Tuesday that his office was reviewing cases against Universiti Malaya law lecturer Associate Professor Dr Azmi Sharom and several others who are facing charges under the Sedition Act 1948.
Gani had said this was a normal practice for the prosecution and his chambers would carry out its duties responsibly with fairness, accuracy and transparency and without influence by any party.But Talib begged to differ.
“To charge a person is a very serious matter at it affects the accused’s credibility, standing and dignity,” he said. It will put the accused in an emotional turmoil. Even, if the prosecution withdraws the charge later, the damage is done.”
The former A-G said during his tenure, he only consented to charges being framed if there was “90% evidence to secure conviction”.He said charges were also framed base on applicable law, fairness and public interest consideration without influence by a third party.
He said Gani’s statement that the chambers would review the charges only gave the impression the decision to charge the accused was made without careful and serious consideration of all the available facts.
“Is he (Gani) admitting that he was not fair and transparent when the accused were first charged, and that is why he is reviewing the cases now? Maybe he should clarify.” Talib said it was not the duty of the prosecution to seek conviction but ensure justice for the accused and victim.
In Azmi’s case, he said, the lecturer was only commenting on the law or explaining the law.”Unfortunately, the term seditious tendency is wide enough. This is where the A-G should have used his wisdom in his decision to frame charges,” he said, adding that during his time there were only one or two sedition cases for prosecution.
Talib, who declined to name names, said there were personalities who made far more serious racial and religious seditious remarks, but were not charged.”He is not required to explain but ideally it will be good to enhance the confidence in the administration of justice and his office,” Talib said, referring to Gani.
On Wednesday, the Malaysian Bar called on Gani to withdraw the sedition charge against Azmi, opposition leaders and activists.Its president, Christopher Leong, said Gani had at the opening of the Legal Year 2013 stated that “every man must present his views without penalty and there must be a spirit of tolerance in the entire population.”
The Bar will hold an extraordinary general meeting on September 19 to debate resolutions on the Sedition Act 1948. Undergraduates from public universities nationwide had also joined a hartal (protest) organised by UM students in a show of solidarity with Azmi.
On September 2, Azmi was charged with sedition based on statements in an article entitled “Take Perak crisis route for speedy end to Selangor impasse, Pakatan told”, which was published in a news portal on August 14.
Sabah politician David Orok was prosecuted under the same law on September 3 for allegedly insulting Islam and Prophet Muhammad in Facebook two months ago. Since early this month, a number of opposition politicians – Padang Serai MP N. Surendran (PKR), Shah Alam MP and PAS central committee member Khalid Samad, and Seri Delima assemblyman R.S.N. Rayer (DAP) – have all been charged with sedition. Seputeh MP Teresa Kok (DAP), Batu MP Tian Chua (PKR) and activist Haris Ibrahim (right) are also facing trial for sedition.
Those found guilty, could face a fine of up to RM5,000 or a maximum jail term of three years, or both.However, elected representatives risk losing their public office if the court imposes a fine of RM2,000 or more, or at least a year’s jail term