The A-G Chambers practises selective prosecution, says MACC


March 29, 2012

The A-G Chambers practises selective prosecution, says MACC

by Kuek Ser Kuang Keng@http://www.malaysiakini.com

The Malaysian Anti-Corruption Commission investigates all allegations of corruption made to it, but it is the Attorney-General’s Chambers that refuses to file in court some of the cases the MACC deems valid.

“Come, show me which case has not been investigated by MACC. There is not even one case that we did not investigate,” its Deputy Commissioner (Operations) Mohd Shukri Abdull (left) told a forum in Shah Alam today.

“The problem is, many people want the cases to be charged in court, but if you ask me on this issue, you are asking the wrong person. To us, there are valid cases (to be charged in court), but to the Deputy Public Prosecutor, there is no case to answer, so what can we do?” Shukri told the participants, who responded with loud cries of lawan (fight).

Giving the audience a dry smile, Shukri replied: “How to fight? MACC has no (prosecution) power.”The articulate senior officer who has 27 years of combating graft behind him, was trying his best to convince the excited audience that MACC was free from political interference and doing its best to haul up corrupt politicians to face the music.

The cheers and applause from the floor suggested that his explanation was well received by the hundreds at the forum titled “Political Bribery: Reality or Perception”, organised by Malay daily Sinar Harian.

“If my officers and I were to act according to our hearts, we would arrest all! But we can’t, because the charges must be based on evidence, not sentiment,” Shukri said, attracting another round of applause from the floor.

The other three speakers at the forum were PKR Strategy Director Rafizi Ramli (right), BN’s Kota Belud MP Abdul Rahman Dahlan and Political Analyst Chandra Muzaffar.

The forum’s moderator was International Islamic University of Malaysia lecturer Maslee Malik. Responding to Shukri’s ‘complaint’ Rafizi quickly came to his defence.

“MACC has no prosecution power”

“If you want to blame, don’t blame Shukri but blame Abdul Rahman because he is the member of Special Parliamentar yCommittee on Anti-Corruption,” said Rafizi. And Shukri who was sitting beside him immediately extended his hand and shook with Rafizi, sending the audience into fits of guffaws.

Rafizi then took potshots at Prime Minister Najib Abdul Razak’s earlier promise that MACC will be given more power should BN retain two-thirds parliamentary majority in the next general election.

“If I were the Prime Minister, no need to amend the constitution just replace the attorney-general with someone who can work with the MACC,” he suggested.

Abdul Rahman  then criticised Rafizi for not respecting the principle of separation of powers, pointing out that should the MACC be given both the power to investigate and prosecute, it would create another problem.

Rafizi quickly corrected Abdul Rahman that he was suggesting to change the A-G, not to give MACC prosecution power, but Abdul Rahman claimed that it was the stance of Pakatan Rakyat representative in the parliamentary committee.

Earlier, Shukri also stressed that his officers in the commission, though having different political inclinations are very professional when it comes to carrying out their duties.

“I have to be very transparent here. My dad and mum are green colour, but people don’t know what colour I am, even my parents don’t know, that is my right. “When it comes to investigation, I’m professional, I’m colour-blind,” he added.

25 thoughts on “The A-G Chambers practises selective prosecution, says MACC

  1. “To us (MACC), there are valid cases (to be charged in court), but to the Deputy Public Prosecutor, there is no case to answer, so what can we do?”

    No case to answer?? I thought that was a ruling for the trial judge at the close of the prosecution’s opening submission? It is for the defense counsel to make.

    The Attorney General’s duty is to decide if there is a crime committed and if there is, is there prima facie evidence that warrants going forward to prosecution. If there is insufficient evidence then he will have to send it back for further investigation. The case just doesn’t end in his personal dustbin or shredded away. He cannot just not do anything.

  2. “Abdul Rahman (right) then criticised Rafizi for not respecting the principle of separation of powers, pointing out that should the MACC be given both the power to investigate and prosecute, it would create another problem”

    An issue involving the doctrine of separation of powers? Does he even understand the doctrine in the first place? The police and the AG’s Chambers are part of the executive arm of the government.

    This is sick.

  3. The doctrine of the separation of powers refers to executive, legislative and judiciary i.e. the three pillars of government. The police investigates and the government prosecutes. MACC is an investigative agency and the AG acting as chief prosecutor decides whether to prosecute a case or not to prosecute. He has none of the discretion that some say he has, given to him under Article 145(3) of the Federal Malaysian Constitution of 1957. If there is evidence enough to constitute a prima facie case he must proceed in the interest of justice. His discretion is in cases where he thinks there is some prima facie evidence but not strong enough to win a conviction. In which case it is not only a waste of public funds but more importantly, you cannot risk double jeopardy.

  4. The AG then has to send the file back to where it came from. In this case it is MACC with his views on the matter and where evidence is lacking. MACC has to collect more evidence, all relevant evidence including (underline ‘including’) evidence that would be inadmissible in a court of law for being hearsay. The AG cannot just hang on to the file and not not do anything.

  5. The Attorney General is the principal legal adviser to the Government. His role and responsibilities are provided for in Article 145 of the Federal Constitution. Article 145 of the Federal Constitution provides:

    “(1) The Yang di-Pertuan Agong shall, on the advice of the Prime Minister, appoint a person who is qualified to be a judge of the Federal Court to be the Attorney General for the Federation.

    (2) It shall be the duty of the Attorney General to advise the Yang di-Pertuan Agong or the Cabinet or any Minister upon such legal matters, and to perform such other duties of a legal character, as may from time to time be referred or assigned to him by the Yang di-Pertuan Agong or the Cabinet, and to discharge the functions conferred on him by or under this Constitution or any other written law.

    (3) The Attorney General shall have power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for an offence, other than proceedings before a Syariah court, a native court or a court-martial.

    (3A) Federal law may confer on the Attorney General power to determine the courts in which or the venue at which any proceedings which he has power under Clause (3) to institute shall be instituted or to which such proceedings shall be transferred.

    (4) In the performance of his duties the Attorney General shall have the right of audience in , and shall take precedence over any other person appearing before, any court or tribunal in the Federation.

    (5) Subject to Clause (6), the Attorney General shall hold office during the pleasure of the Yang di-Pertuan Agong and may at any time resign his office and, unless he is a member of the Cabinet, shall receive such remuneration as the Yang di-Pertuan Agong may determine.

    (6) The person holding the office of Attorney General immediately prior to the coming into operation of this Article shall continue to hold the office on terms and conditions not less favourable than those applicable to him immediately before such coming into operation and shall not be removed from office except on the like grounds and in the like manner as a judge of the Federal Court.”

    Gani Patail is a powerful man; there is nothing to stop him from exercising his powers as provided in Article 145. Mongkut Bean, if you were given the task of amending this article, how would you re-word it.–Din Merican

  6. Sick Member of Parliament so you have a sick Parliament. They need an education to understand separation of powers and not just use the term as “buzz” words. Everybody is into buzz words nowadays without really understanding the principles and concept. Just following 1Leader. Ah Jib Gor.

  7. Gani Patail is a powerful man; there is nothing to stop from exercising his powers as provided in Article 145. Mongkut Bean, if you were given the task of amending this article, how would you re-word it.–Din Merican

    Dato,

    There is nothing wrong with Article 145. There is nothing wrong with sub-clause (3) of the said Article.

    All we need is a test case to go to the highest court the Federal Court for an interpretation of sub-clause (3). There is only one interpretation of the use of the AG’s discretion in the interest of justice; but if the federal justices think there is ambiguity in interpretation then they should be sent back to the Parliamentary draftsman to plug any holes that may exist. Right now the only hole that is waiting to be plugged and one Goolbatok may be interested in, is the one the A-G is sitting on.
    ___________________
    Goolbatok is not good enough nor strong to give him the full works. The A-G needs to be serviced by Bro Bigbatanggedaboo Aiwiya from Harlem, NYC. –Din Merican

  8. what a load of bull coming from the macc man. The sub-standard macc and its methods of investigation are a cause of grave concern bearing the now decease TBH and senior customs official Ahmad Sarbani in mind..Have? shukri and the higher ups done anything to address the ruthless approached by their sub-ordinates that caused the deaths of these two law abiding citizens whose only fouled up with the law were out of circumstance , and owing to their jobs happened to be minor players caught in a web of political esponiage and in Ahmad Sarbani’s case , the MACCs own tactics of diverting attention from the messed it brought upon itself over TBH death. Needless to mention the dreadful ‘ fixing ‘ of witnesses and agent provocateurs as revealed in ex-cop Ramly’s encounter with the macc and other cases where witnessess/suspects were threatened with bodily harm/jail term , forcing them into submission.

  9. This is the result of years of mental subjugation by the likes of Al Kutty and his gang. Politicians and civil servants alike can no longer think or act without referring to big boss. Anything that looks or sounds negative to the ruling coalition, especially Umno is strictly no no. I saw this happening when I was in Mindef in the 1980s.

  10. ….so what can we do? Shukri told the participants..Do what has to be done. Call a press conference and list out the cases that need action by the AG’s office like what was done by the police officer in the NFC case. Thumb the AG in the nose !! Lawan mesti lawan !! The AG is a public official and has to be accountable like all public servants including the PM.!!

  11. Why has our System, esp the Legal System, gone awry and in the present mess & not abiding by the sacrosanct Rule of Law ?
    May iplay the old tune sung by Hamid Hussein (?) from Downunder in order to refresh our memory : ” First world structure manned by Third world mentality….” – that’s the crunch of the problem. Its not about Structure & the provisions of the Law….its all about ” WHO ” manns these Palatial structures….? And not mere ” brains ” or brainy people either, not sufficient….
    The younger breed of good caliber endowed with professional skills, must posses strength of Character, Intergrity with Dedication – still not sufficient but as they mellow with maturity & experience, there is still the ADDED quality for compliance of Ethics & Morality, so that with all these entrenched qualities, they be ultimately imbued with Humanism,,,its a must,

    Wow…as if i am imbued with all these Humanism, i would like to ” offer ” that i may be able to Lecture on humanism…
    Not necessary, the new breed of leaders merely have to EMULATE those past Icons ( repeat some of them ) Tu n Tan Cheng Lock/Tan Siew Sin, Tun Omar Yoke Lin, the likes of Tun Suffian, Tun Salleh Abbas, Tun Ismail Ali, TS Harun Hashim….
    It is not about What…..but Who…..

  12. The AG practices selective prosecution, the MACC and PDRM practices selective investigation, the EC practices selective delienation, JPA practices selective awards of scholarship, the Armed Forces practices selective recruitment, the Public Universities practices selective enrollment, so what’s new? Which agency does not practice “selective” methods?

  13. Selective la – the main weapon of the power to be? Eve n their so called MP r dumb n their supporters r the dumbest of them all. What do u expect from them as this is the legacy of the only one ….apa nama, lupa suda leader?

  14. It is time to clip if not redefine the powers of the AG. Obviously we cannot just allow ONE man to decide whether to prosecute or not based on some murky reasons.

  15. Tell me really, what is the point of this murky ‘conversation’?
    Jibs Sdn Bhd. have said it many times, this AG is inviolable thru’ hell and high water. So Nothing will change. The gutter politicking rampant in our not-so-august Parliament/Senate (where ‘impeachment’ seems to take on a whole new meaning) – nauseates and suffocates, while our whining and gripping among ‘peers’ here is akin to intellectual masturbation. Just remember, Transformation is a useless word without the ejaculation.

    If you guys want a revamp the MACC, reform PDRM and kick out the present 3rd class, morally and intellectually challenged AG, you’ll have to kick out UMNO first. This is my final word on legalistic opportunism.

  16. There are three sets of laws in Bolehland. One for the Umnoputras and their cohorts, one for the Opposition and lowly minions like us and one for the lembus. However, law for the lembus has been rescinded after the Cowgate incident.

  17. the MACC, PRDM and the rest of the civil institutions are what they are today – murky – because of UMNOs corrupt handling. in murky waters dwell sinister creatures!
    just like Nazi Germany, the revamp has to start from the ‘Kopf’ and not from the bottom. the bastardization of malaysia was started by UMNO alone so without eliminating this evil we can’t change anything.
    hope for malaysia will only come with the change of government. don’t wait too long.
    please stop from discussing politicians who have been around many decades but not done anything to stop the corruption of this country.
    it pains me tremendously to read here that malaysia is considered a corrupt country.
    how long will it take to become a failed state?
    will Sabah – Sarawak be a one big Palm Oil Plantation in the future (BBC)?
    will the peninsula malaysia become the cloaca for the developed world to dump their toxic waste?

  18. (They) say the law is an arse…” – danildaud

    I thought the law is supposed to be an ass? Wonder if our friend Goolbatok has anything to do with the confusion between the two. This is the four-legged version of the ass and not the one our AG is sitting on.

  19. In India an attempt was made by one man to fight corruption and he failed. Why? . Paliament and the Prime Minster said that India is the mother of all democracies and how can we allow the will of one man to prevail. These issues must be decided by the supreme policy making body of the land. Now no one talks about coruption in India. And like our PDRM there are claims that only 1 or 2 % of the administration is ccorrupt. If that is so why has TI not ranked these countries with Switzerland and Singapore in the Global Ccorruption Index?

    PS Every year from now I will add a additional “c” to this unspoken word.

  20. “Gani Patail is a powerful man; there is nothing to stop him from exercising his powers as provided in Article 145. Mongkut Bean” — Dato Din Merican

    Those powers you’re referring to cannot be found under Article 145. They may be referred as being extraconstitutional powers, found nowhere within the four corners of the country’s Federal Constitution of 1957. He has no such powers given to him under Article 145(3) to abuse in the first place.

    The “discretion” referred to therein is:

    to enable the country’s Attorney General (not to be confused with Gani Patail the current holder of the office of Attorney General) in his capacity as Chief Prosecutor to decide “in the interest of justice” (and it is this that is “absolute” i.e. he has that discretion)

    a) if he should go forward to full trial now
    b) if he thinks more investigation is needed, he sends the file back with his opinion on the evidence collected thus far.

    In deciding to go forward with prosecution, whether evidence before him made available by the police or/and other investigative agencies, is enough to win a conviction. Note that the police when investigating the case collects all relevant evidence but not all evidence that is relevant is admissible evidence in a court of law. The issue before him as top prosecutor is whether there is sufficient prima facie evidence (a term of art) not just to proceed to trial but to win a conviction. Evidence insufficient to prove a prima facie case would mean its dismissal for lack of evidence. It will not survive the preliminary hearings. If he is unsure he should not proceed to trial. It would not only be a waste of state resources (read “taxpayer money”) but there is the issue of double jeopardy should the case proceed to full trial and then fails to meet the high criminal standard of proof beyond reasonanble doubt.

    If the government loses too many cases, then the Attorney General in any jurisdiction anywhere would be made to resign. But here is a case of an AG who wrongfully rather than wrongly decides not to proceed with certain cases connected with the ruling party.

    The only way out is a change in government. And then to drag this AG screaming and kicking to court to answer and to face the consequences of his actions. The only reason why he is still hanging on and not packing his bags and bundling his family off to some cold destinations is that he knows something we do not know about the coming elections.
    _________
    You are right, Hang Mongkut Bean. Even if he packs his bags and leaves our country, the long arm of the arm of the law will get.If the Law does not(or is slow to get him), the hoods will. He forgets that one day he will have to walk the streets once he becomes an ordinary citizen. –Din Merican

  21. Even if he packs his bags and leaves our country, the long arm of the law will get him — Dato DIn Merican

    Yes, over here in the U.S. when someone does something in one state within the United States and goes to another state (within the United States) to escape jurisdiction of that state, we have what we refer to as “long arm jurisdiction”.

    But Interpol deals with serious crimes like drug trafficking and human trafficking, money laundering and murder cases and cross border offences. They have too much on their plate to bother with a local punk from another country.

  22. Yu want the AG to act independently as required by the constitution and his Oath Office then pay him full pension based on his mandatory year of retirement in the evene he resings on a matter of principle. Then only then will he exercise his authority without fear or favour.

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