BY JAHABERDEEN MOHAMED YUNOOS
SEPT 5 — The Attorney-General’s (AG) Office is understandably of concern to the citizens. In our country, the attorney-general heads the Attorney-General’s Chambers (AGC) which is responsible for a host of duties and responsibilities including drafting of statutes, regulations, and by laws, advising the government on legal matters and instituting and conducting criminal prosecutions.
The AGC, therefore, in its role of prosecuting for offences or deciding not to prosecute becomes a vital part of the country’s justice system.
The public in general is affected by the AG’s use of discretion as provided for under Article 145 (3) of the Federal Constitution. It provides that the AG “shall have power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for an offence, other than proceedings before a Muslim court, a native court or a court-martial”.
It means the AG can decide to charge someone for an offence or not and also whether a criminal proceeding against someone should be discontinued. In cases where a criminal act may be the subject of several offences or statutes, the AG may exercise his discretion as to which charges and how many he wants to proffer.
I believe the discretionary powers given to the AG must not only be exercised in accordance with the law, as it is his duty to uphold the rule of law, it must also be exercised compassionately. The power, for example, to discontinue proceedings in certain cases, requires the consideration of facts and circumstances that are peculiar to a particular case.
Lawyers often write representations on behalf of their clients to the AG to make various offers to settle a criminal case and sometimes, even to withdraw the charge. This is an important part of the justice process and in this regard the AG, is in a sense, the fountain of justice. His proper exercise of discretion will have a far reaching effect in upholding justice in the country because unlike the judge in the court room, he is not tied to purely legal considerations alone.
The AG, therefore, has tremendous powers and the exercise of his discretion may be subjected to criticism if there are perceptions of partiality, favouritism, persecution or malice. Hence, it is important that the exercise of his discretion should not only be just and in accordance with the law but it must also be seen so. Even though in cases of malicious prosecution, the affected party may bring the AG to court to seek justice, the broader issue of the integrity and public perception of the AG’s office ought to be addressed.
The issue of how the AG is able to respond to public criticisms is becoming increasingly important in a vibrant democracy that emphasises accountability. In other words, is the AG accountable to the public or is he only answerable to the Yang di-Pertuan Agong who appoints him by virtue of Article 145(1)? Since his appointment under the law is on the advice of the prime minister, the public may also view him as being not completely independent in the exercise of his prosecutorial duties. Hence, a “tweaking” of sorts needs to be done to maintain public confidence.
There was a time in our country where the AG was also the minister of law, for example, Tan Sri Abdul Kadir Yusuf (1963-1977) and Tan Sri Abu Samah (1977-1980). This dual position as AG and minister solved the issue of accountability because they become answerable to Parliament, which is made up of the people’s representative. However, I believe this situation changed in the 1980s from the time of Tan Sri Abu Talib Othman as AG.
In the United Kingdom, they have set up a specialised Crown Prosecution Service (CPS) which carries out the majority of the prosecution services with salaried professionals and staff. Due to the setting up of the CPS, the UK AG has relinquished most of his prosecutorial powers to the Director of Public Prosecutions who heads the CPS. Being a minister, the UK AG becomes answerable to Parliament. This way there is a perception of accountability to the UK citizens and also greater independence of the CPS.
The creation of the CPS in UK also frees the AG to focus on other duties, such as being the legal adviser of the government.
Hence, if accountability is held as an important ingredient of a responsible democracy, the government may want to embark on reform measures that concern the office of the AG and the AGC itself.
Perhaps it time the prosecution powers are delegated to a body akin to the CPS, and the AG is also made a minister who is answerable to Parliament.
* Jahaberdeen is a senior lawyer and founder of Rapera, a movement that encourages thinking and compassionate citizens. He can be reached at firstname.lastname@example.org