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.