BY GURDIAL SINGH NIJAR
(Deputy President, HAKAM)
AN extraordinary and unprecedented case is before our courts: the Malaysian Bar is challenging the decision of the attorney-general not to prosecute a high official in respect of huge sums of monies found in his personal bank account; and for directing the anti-corruption body, the MACC, to close all investigations into a large scandal.
Under our court rules, the Bar must first get the permission (or “leave”) of the court before it can proceed to the next stage – where the court will hear arguments on whether or not the AG acted lawfully. All that the Bar has to show to get this permission is that it has a “sufficient interest” to bring this action; that its case is not frivolous; and that the matter is amenable to be reviewed by the court.
Predictably, the AG’s Chambers led by senior federal counsel Amarjeet Singh, is opposing the grant of leave. He argued at the High Court hearing last month that the Bar had no right to bring this action as its interest was not affected. Also that the AG had an absolute discretion under Article 145(3) of the Federal Constitution on whether to prosecute or not. The AG had decided, they argued, on evidence of witnesses in the investigation papers. As these were not accessible to the Bar, the allegations of impropriety relied on unverified material and facts obtained from the electronic media. Finally, chambers said that the MACC could initiate further investigations if new evidence emerged. Then it could resubmit its report to the AG for him to decide on prosecution.
The Bar’s case, through lead counsel Tommy Thomas, is that it had a duty under the Legal Profession Act to uphold the cause of justice to prevent the AG from acting in excess of his power. The Bar, as an active participant in the administration of justice, had an interest to “vindicate the rule of law”. The AG’s decision, it argued, undermined the rule of law. And hence this “public interest litigation” to ensure that the Federal Constitution would not be “left unvindicated”.
The Bar further argued that the AG was in a position of conflict because he was adviser to the PM (whose conduct was impugned) as well as the government in relation to the very matters for which he had to decide whether or not to prosecute. He had in fact previously advised the PM not to answer questions in Parliament relating to the monies in his personal bank accounts – which was the precise subject of the investigations by the MACC. There was hence an appearance of conflict.
Additionally, the AG was not authorised to declare the PM innocent. Only a court of law was entitled to do that. His power was limited to deciding whether to prosecute the PM based on the evidence before him.
The MACC had also requested the AG to seek the assistance of other countries to complete its investigations. Instead, the Bar argued, the AG wrongfully refused this request and ordered the MACC to close the investigations prematurely.
The High Court will now have to decide whether or not to allow the matter to proceed to the next stage – where lawyers will submit on whether or not the AG acted unlawfully in making the challenged decisions.
This case raises some fundamental and critical questions. The AG is in a sense part of the executive. He advises the government of the day – which is headed by the PM. When the PM is at the centre of the investigations with regard to what are alleged to be his private matters, such as funds in his personal account, should the AG be advising him on these matters? Is not the AG’s role limited to protecting and advising officials on their public – and not personal – matters? Can the AG who advises the PM in the ongoing alleged personal wrongful misconduct issue discharge his duty in the public interest? Does he not then place himself – and be perceived to be – in a position of conflict?
Hopefully, the court’s ultimate decision may (if permission is given to proceed with the case) shed some light on these vexed posers.
Gurdial is a former law professor and currently a legal consultant as well as Deputy President of HAKAM.