June 20, 2017
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.
The Role of the Malaysian A-G in Political Scandals
The A-G’s quick dismissal of the DoJ’s second suit and his vigorous defence of the Prime Minister against any criminal wrongdoing has raised eyebrows.
by Lim Wei Jiet
A little over 24 hours ago, the US Department of Justice (DoJ) filed a second suit to recover more assets allegedly acquired using 1MDB funds. The 251-page complaint sheds more light on the scandal and seeks to seize assets such as yachts, diamonds, rights to Red Granite Pictures films and paintings by notable artists.
In a matter of hours, the Malaysian Attorney-General (A-G) saw fit to release a press statement. Two observations were made from this press statement:
Number One – the A-G was unmistakably dismissive of the DoJ’s second suit: “This second action comes on the anniversary of the first, and appears to be a repeat of it”.
Number Two – the A-G mounted a vigorous defence of the prime minister: “The attorney-general expressed his strong concerns at the insinuations and allegations that have been made against the Prime Minister of alleged criminal wrongdoing in relation to the civil action”.
With respect, these postures adopted by the A-G are both misconceived and not in line with the role of an attorney-general in law. Make no mistake – this second civil suit is not a repeat of the first filed on July 20, 2016.
First, the DoJ has now quantified the alleged misappropriated funds at US$4.5 billion from the initial US$3 billion. Second, it reveals several new “phases” in which funds were allegedly siphoned from 1MDB. Third and most obvious, it has identified more assets in which these misappropriated funds were spent on.
It is therefore unfathomable how the A-G can reach a conclusion that the second civil suit is a repeat of the first, what more in a matter of hours after its release.
Eyebrows were also raised as to how quickly the AG sought to shield the Prime Minister from allegations of criminal wrongdoing.
These statements appear to be incongruent with established international conventions on the role of prosecutors.
Article 13(b) of the UN Guidelines on the Role of Prosecutors 1990 states that prosecutors shall “(b) protect the public interest, act with objectivity, take proper account of the position of the suspect and the victim, and pay attention to all relevant circumstances, irrespective of whether they are to the advantage or disadvantage of the suspect”.
Meanwhile, Article 3 of the International Association of Prosecutor’s Standards of Professional Responsibility 1999 states that “Prosecutors shall perform their duties without fear, favour or prejudice. In particular they shall…act with objectivity; have regard to all relevant circumstances, irrespective of whether they are to the advantage or disadvantage of the suspect…always search for the truth and assist the court to arrive at the truth and to do justice between the community, the victim and the accused according to law and the dictates of fairness.”
Moving forward, it is humbly recommended that these guidelines be followed by the A-G:
• To appoint a special prosecutor of unimpeachable integrity to investigate and take appropriate action in relation to the 1MDB matter, as the attorney-generals in the US have done in Archibald Cox during the Watergate scandal and Robert Mueller towards Russian interference in the US elections.
• Whenever a foreign jurisdiction takes action on matters relating to the 1MDB matter, take appropriate time to read and liaise with the authorities to comprehensively assess all relevant angles before dismissing the same.
• Whenever any party alleges or accuses a person investigated in the 1MDB matter, take appropriate time to reach out to such parties for more information before dismissing the same.
• Never attack or defend any person currently being investigated in the 1MDB matter to prevent an impression of bias.
If one needs a role model, one can look no further than our US brethren in Sally Yates, the acting US attorney-general who defied US President Donald Trump in defence of the Rule of Law and the dignity of the DoJ.
I end by quoting a paragraph of her poignant speech to the Harvard Law School’s graduating class of 2017:
“There is plenty worth fighting for. For me, it’s criminal justice reform — so that we can have a fair and proportional criminal justice system that applies equally to all regardless of race, wealth or status. It’s also respect for the brave men and women of law enforcement who put their lives on the line to protect us. It’s holding corporate executives who break the law accountable so that cheating and stealing doesn’t become just a way of doing business…It’s the rule of law, and the principle that our law enforcement and intelligence agencies must be free to do their work without political interference or intimidation.”
Lim Wei Jiet is an advocate and solicitor of the High Court of Malaya. He is also the deputy co-chairperson of the Malaysian Bar Constitutional Law Committee.