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.

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