Wednesday, July 16, 2008

The ACA and the power to prosecute

LAST Friday, the Anti-Corruption Agency announced that it has been given full powers to prosecute anyone for corruption. This means it no longer needs to refer to the Attorney-General’s Chambers after completing its investigations.

According to news reports, the A-G’s Chambers will now second a senior officer to be a director at the ACA, giving him powers to prosecute cases. This officer will report directly to the director-general of the ACA.

In Malaysia, Article 145(3) of the Federal Constitution expressly states that 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.

Section 376 of the Criminal Procedure Code (CPC) also expressly states that the attorney-general shall be the public prosecutor and shall have the control and direction of all criminal prosecutions and proceedings. To assist him, the public prosecutor may appoint and authorise other persons such as the assistant and deputy public prosecutors, advocates, police officers, officers of any government department, local authority or any statutory authority to conduct criminal prosecutions before any court or any inquiry before a magistrate.

Hence, the public prosecutor is the alter ego of the attorney-general, in that these two positions are held by one and the same person.

In 1999, Justice Datuk Gopal Sri Ram, sitting as a High Court judge, decided in Repco Holdings Bhd v PP that Article 145(3) gives the attorney-general the sole and exclusive authority to institute and conduct any criminal proceedings, although neither the word “sole” nor “exclusive ” appears in Article 145(3).

He therefore held that any law that confers prosecution powers upon any other person is unconstitutional, and that the attorney-general’s exercise of discretion in this matter is not subject to judicial review.

Even though High Court judges like Justice Datuk Ian Chin in PP v Lee Ming & Anor (1999) and Justice Datuk Abdul Wahab Patail in Rajendran a/l Gurusamy v PP (2000) and Datuk Seri S.Samy Vellu v S. Nadarajah (2000) have expressed their reservations on the correctness of Sri Ram’s interpretation of Article 145(3), the latter’s decision has however been followed by the Court of Appeal on several occasions.

It follows that Repco’s decision essentially means the following:

• The attorney-general and the public prosecutor must be the same person. If the public prosecutor is not the attorney-general, then Section 376 of the CPC is unconstitutional.

•Any law similar to Section 39(2) of the Securities Commission Act 1993 that provides that any officer of the Securities Commission (SC) authorised in writing by the SC chairman may conduct any prosecution of any offence under the said Act will be struck down as unconstitutional. (Section 39(2) was subsequently repealed on Sept 28, 2007.)

It is therefore respectfully submitted that without any amendment being effected to Article 145(3), and so long as the decision in Repco still stands, the ACA’s legal officers who report to the ACA chief are still the attorney-general’s subordinates. The attorney-general can always overrule them anytime. In this sense, it cannot be said the ACA now possesses independent prosecution powers.

Further, it is a mistake to broadcast to the whole world that the legal officers now report to the ACA chief over prosecution matters.

This is not only wrong in the light of Repco’s case, but it will now certainly prompt every accused’s counsel in a corruption trial to raise a preliminary issue of whether the attorney-general’s consent has been obtained before a charge is preferred against his client. This is because Section 50 of the Anti-Corruption Act 1997 expressly provides that no prosecution under the said 1997 Act shall be instituted except by or with the consent of the public prosecutor.

Hence, the latest move, though viewed by many as a step in the right direction, may just turn out to be a façade in our haste to please the court of public opinion.

To my mind, if the government is really serious about establishing a “full-fledged” Malaysian Commission on Anti-Corruption by the end of this year, we must do things properly so that we can rebuild the legal structure of ACA to make it a totally independent anti-corruption enforcement body.

It is, therefore, always a danger to vest absolute powers in one person alone. To this aim, Article 145(3) can be amended to make it clear that it does not confer upon the attorney-general sole and exclusive power to institute and conduct prosecutions.

In so doing, the office of the public prosecutor can be assumed by another officer independent of the attorney-general, so that day-to-day prosecutions are personally conducted by the public prosecutor and other statutorily appointed officers.

The attorney-general can still have supervisory, but not exclusive, powers over prosecutions so that he can concentrate on his role, and rightly so, as the chief legal adviser to the government.

Tuesday, July 8, 2008

A virtual breakdown of law and order

THERE is no doubt that the statutory declaration is a much talked-about legal document in recent weeks. Some have now even wryly dubbed it "sextutory" declaration.

What is a statutory declaration?

In simple terms, it is a statement made under oath outside the court before a Sessions Court judge, magistrate or a commissioner for oaths. If it is used for a purpose outside Malaysia, then it must be made before a notary public.

A statutory declaration is often used where documentary evidence is not available, to affirm personal matters relating to an individual such as his identity, marital status, nationality and solvency.

Under the Statutory Declarations Act 1960 ("Act 13"), a statutory declaration must begin with the words "I do hereby solemnly and sincerely declare..." and end with the words "I make this solemn declaration conscientiously believing the same to be true, and by virtue of the provisions of the Statutory Declarations Act 1960".

In the absence of these words, it has been held by the courts that such a statement is not a statutory declaration.

It follows that a statutory declaration should not contain any hearsay evidence, since the declarant is making a statement under oath "conscientiously believing the same to be true".

Even if the statutory declaration contains hearsay evidence, the declarant should disclose the source of such information.

This brings me to the two conflicting statutory declarations made by private investigator P. Balasubramaniam in a matter of 24 hours. Whatever it is, the statements contained in one of the declarations are obviously untrue.

By resiling from what he has affirmed in the first declaration, Bala's public recantation by way of a second declaration is not only self-incriminating but also constitutes damning evidence that he has lied in the first declaration.

Under Section 3 of Act 13 and Section 199 of the Penal Code, a declarant who makes a false declaration is treated as if he has given false evidence.

Section 193 of the Penal Code provides that: "Whoever intentionally gives false evidence in any stage of a judicial proceeding, or fabricates false evidence for the purpose of being used in any stage of a judicial proceeding, shall be punished with imprisonment for a term which may extend to seven years, and shall also be liable to fine; and whoever intentionally gives or fabricates false evidence in any other case, shall be punished with imprisonment for a term which may extend to three years, and shall also be liable to fine."

However, Bala has affirmed in the second declaration that he was compelled to make the first declaration under duress, and he ended his second declaration slightly differently from what is required under Act 13, with an additional word, "voluntarily", that is: "I make this solemn declaration voluntarily and conscientiously believing the same to be true, and by virtue of the provisions of the Statutory Declarations Act 1960."

In other words, Bala is saying he was not coerced into making the second declaration, and that the first declaration can now be treated as arrant nonsense.

In any event, if Bala is charged with giving false evidence, duress can be a defence but he has to produce evidence to that effect to exculpate himself. It is, however, inappropriate to discuss here the effect of his ignominious statutory declarations on the evidence he earlier gave and his position as a witness.

However, what concerns me is not so much the two statutory declarations but rather how a separate trial is being conducted by the media and bloggers when the actual murder trial is ongoing.

Little regard is had to the rule of sub judice. There appears to be a virtual breakdown of law and order as statements are constantly being made outside court by various parties which, in other cases, would have constituted contempt and interference with the due process.

But so far no party, especially the prosecution, has seen the need yet to apply for any gag order to stop these pernicious activities.

It seems to me now that after the March 8 elections, our mainstream media are prepared to take sides over several issues. This is good in the name of press freedom.

But we cannot throw out of the window long-established practices, one of which is never to prejudge a case before the completion of police investigation.

Likewise, our media are expected to undertake self-censorship and would not publish explicit remarks that would malign the dead, and words like "Altantuya Shaariibuu was susceptible to a certain form of sex" would not have seen the day unless uttered in a court of law.

Similarly, in any complaint, we do not go after the complainant treating the victim as if he/she is the villain before the conclusion of investigations.

It is, therefore, sad to note the growing trend these days, that whenever a case involves an intersection of sex, crime and politics, the media are prepared to form a judgment and our people are also quick to draw conclusions.

It is hoped that, notwithstanding that some of us may have already made up our minds on the innocence or guilt of those who accused and those being accused, we will not, in our haste to do so, sacrifice the principle upon which our nation is founded: the rule of law.

Saturday, July 5, 2008

Bala could face perjury charge

The Star
by Chelsea L.Y. Ng, Manjit Kaur and Andrea Filmer

PETALING JAYA: A statutory declaration is evidence given under oath which cannot be retracted, said a serving judge and several senior members of the legal fraternity.

They believed private investigator P. Balasubramaniam’s act of retracting his initial declaration, which made serious accusations against Deputy Prime Minister Datuk Seri Najib Tun Razak, could open the former to perjury charges.

According to the judge, who is an authority in criminal law, affirming a statutory declaration was akin to giving evidence in court.

“Under the normal rule of evidence, one cannot withdraw it unless he has very strong reasons. Those reasons must be included in the withdrawal or else he would be committing perjury,” he said.

He said if one was citing duress as a reason for making false accusations in a statutory declaration, he must present proof of such pressure.

“He must show that the pressure was serious like it’s life-threatening to him or his family members.

“He cannot just say that he is withdrawing the statutory statement because he had earlier been forced to do it. Someone can now lodge a police report against him and he could face a perjury charge,” he said.

Balasubramaniam announced yesterday that he had retracted the entire content of his statutory declaration that alleged police had omitted vital information in the Altantuya Shaariibuu murder case barely 24 hours after he made it public on Thursday.

Bar Council chairman Datuk Ambiga Sreenevasan said a statutory declaration was basically evidence on oath that, once given, could not be retracted.

She, however, said a person could add or correct the statutory declaration to file a further declaration.

“Because it is evidence on oath, and if there are untrue statements, then there is the possibility of a person having given a false statement.”

Bar Council’s criminal law committee deputy chairman Datuk V. Sithambaran said that under the law, two inconsistent statements meant that a person had most likely committed perjury.

“Such an act under the case law suggests that a person is guilty of perjury,” he said.

Senior lawyer Roger Tan said once a statutory declaration was made it could not be cancelled midway because it was a sworn statement of fact.

Tan said Section 3 of the Statutory Declarations Act 1960 provided that a false declaration was punishable.

Veteran lawyer Karpal Singh said the retraction amounted to an offence under Section 193 of the Penal Code.

“Under the section, making a false statutory declaration carries the penalty of not more than seven years' imprisonment or fine or both,” said the DAP chairman.

He also urged the private eye to make public the nature of the alleged duress.