Time to check law­less­ness


O Flate peo­ple are feel­ing a sense of hope­less­ness. Laws are not be­ing obeyed. Nor are they be­ing en­forced. Or are per­ceived as be­ing en­forced se­lec­tively.

It starts from the smaller in­frac­tions – to much larger ones. Let’s look at some ex­am­ples.

The Royal Com­mis­sion of En­quiry on a video clip show­ing a lawyer “fix­ing” the ap­point­ment of judges, rec­om­mended in 2008 that the at­tor­ney-gen­eral (AG) in­ves­ti­gate the pos­si­ble ini­ti­a­tion of crim­i­nal charges against named in­di­vid­u­als. No charges ever ma­te­ri­alised.

In Septem­ber 2014 the Court of Ap­peal di­rected the in­spec­tor-gen­eral of po­lice and the AG to com­mence in­ves­ti­ga­tion and pre­fer charges against those re­spon­si­ble for Teoh Beng Hock’s death. No­body has been charged.

Self-styled vig­i­lantes as­sault or in­tim­i­date those le­git­i­mately ex­er­cis­ing their con­sti­tu­tional right to as­sem­ble peace­fully. A video that went vi­ral says it all – a mo­tor­cy­clist com­ing from an ap­proved rally dragged and beaten mer­ci­lessly. The car of a well-known lawyer blocked – with the mob bay­ing for her to “get lost”. And the same shame­less treat­ment ac­corded to the leader of Ber­sih – a net­work of some 83 NGOs. All recorded on video; seen by thou­sands. But invisible to of­fi­cial­dom?

The stri­dent voices spew­ing ra­cial and re­li­gious ha­tred are met with no more than a mere mouthing of slo­gans of unity; and con­sid­er­able dither­ing against those per­sis­tently threat­en­ing to wreck so­cial, eth­nic and re­li­gious har­mony.

Worse is the seem­ing re­luc­tance to pro­vide the mu­tual le­gal as­sis­tance sought twice by the Swiss At­tor­ney Gen­eral’s Of­fice with re­gard to the crim­i­nal pro­ceed­ings opened by the Swiss author­i­ties in re­la­tion to mis­ap­pro­pri­a­tion of huge sums from the SRC and the 1MDB sov­er­eign fund. The first re­quest was made in Jan­uary 2016; the sec­ond on Oct 5. In stark con­trast, the Mon­e­tary Author­ity of Sin­ga­pore has taken stiff ac­tion against three banks and its se­nior man­age­ment for se­ri­ous fail­ures in anti-money laun­der­ing con­trols in re­la­tion to 1MDB-related fund flows.

So breaches of the law con­tinue un­abated. Many worry now: how long can a democ­racy sur­vive in the face of per­sis­tent in­ac­tion?

Cen­tral to all this is of course the public pros­e­cu­tor of the na­tion, the at­tor­ney-gen­eral. In a case deal­ing with the power of the at­tor­ney-gen­eral, that great le­gal lu­mi­nary, Lord Den­ning said: “when the At­tor­ney Gen­eral comes, as he does here, and tells us that he has a pre­rog­a­tive by which he alone is the one who can say whether the crim­i­nal law should be en­forced in these courts or not – then I say he has no such pre­rog­a­tive. He has no pre­rog­a­tive to sus­pend or dis­pense with the laws of Eng­land”: Gouriet v Union of Postal Work­ers (1971).

The AG had con­tended that he was an­swer­able to Par­lia­ment alone. De­clin­ing to give any rea­sons for his de­ci­sion not to act, said Lord Den­ning, “was a di­rect chal­lenge to the rule of law”. With a vi­sion to the fu­ture, he de­clared that if the AG re­fused his con­sent to the en­force­ment of the crim­i­nal law then any cit­i­zen can come to the courts and ask that the law be en­forced. “This is an es­sen­tial safe­guard; for were it not so, the At­tor­ney Gen­eral could, by his veto … make the crim­i­nal law of no ef­fect. Con­fronted with a pow­er­ful sub­ject whom he feared to of­fend, he could refuse his con­sent time and time again. Then that sub­ject could dis­re­gard the law with im­punity. It would in­deed be above the law. This can­not be per­mit­ted. To ev­ery sub­ject in this land no mat­ter how pow­er­ful, I would use Thomas Fuller’s words over 300 years ago: ‘Be you ever so high, the law is above you’.”

On ap­peal, un­for­tu­nately, the House of Lords said it was the ex­clu­sive right of the AG to rep­re­sent the public in­ter­est as a mat­ter of con­sti­tu­tional prin­ci­ple. In short, he had ab­so­lute dis­cre­tion to de­cide whether or not to pros­e­cute.

The court did how­ever im­ply that the AG must not con­sider the reper­cus­sion of his de­ci­sion upon his per­sonal or party’s or the gov­ern­ment’s po­lit­i­cal for­tunes.

Nearer home, a strong three­mem­ber panel of Sin­ga­pore judges held that the pros­e­cu­to­rial power of the AG is not un­fet­tered. The Sin­ga­pore chief jus­tice said the dis­cre­tionary power to pros­e­cute un­der the Con­sti­tu­tion (sim­i­lar to the Malaysian Con­sti­tu­tion) is not ab­so­lute. It must be ex­er­cised in good faith for the pur­pose it was in­tended and not for an ex­tra­ne­ous pur­pose. Else it would be un­con­sti­tu­tional and chal­lenge­able in court. The Privy Coun­cil held in a Malaysian case, that the AG’s de­ci­sion on pros­e­cu­tion must be un­bi­ased and not dic­tated by some ir­rel­e­vant con­sid­er­a­tions: Teh Cheng Poh (1979).

What then is the role of the ju­di­ciary as an ef­fec­tive check and bal­ance to rein in the un­bri­dled power of the public pros­e­cu­tor? For, as Raja Azlan Shah, one-time head of our ju­di­ciary warned, ev­ery le­gal power must have le­gal lim­its, oth­er­wise there is dic­ta­tor­ship.

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