Malaysian Bar vs the AG

The Sun (Malaysia) - - SPEAK UP - BY

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 an­ti­cor­rup­tion 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, a for­mer law pro­fes­sor, is in ac­tive prac­tice as a le­gal con­sul­tant. Com­ments: let­ters@the­

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