Monday, 1 August 2016

Malaysia-Press Release | The Attorney General Must Exercise Prosecutorial Powers Fairly, Independently and Impartially

Press Release | The Attorney General Must Exercise Prosecutorial Powers Fairly, Independently and Impartially


Press Release
The Attorney General Must Exercise Prosecutorial Powers Fairly, Independently and Impartially
The Malaysian Bar is very concerned by the recent statement made by Attorney General Tan Sri Dato' Sri Haji Mohamed Apandi bin Haji Ali, where he "expressed his strong concerns at the insinuations and allegations that have been made against the Prime Minister of alleged criminal wrongdoing [sic] in relation to the civil action in rem filed by the [United States Department of Justice]".[1]  He also reportedly issued a "final warning" to Penang Chief Minister Lim Guan Eng to stop commenting on the criminal charges the Penang Chief Minister is facing, failing which the Attorney General might have to disclose evidence that the prosecution has against the Penang Chief Minister.[2]
The Attorney General of Malaysia has two separate and distinct roles under the Federal Constitution.  He is the principal legal adviser to the Government under Article 145(2), which is a political role.  He is also the Public Prosecutor under Article 145(3) (read with of the Sections 376 and 377 of the Criminal Procedure Code), which is a prosecutorial role.  As Public Prosecutor, the Attorney General must act independently and impartially as the guardian of the public interest, uninfluenced by political considerations.
It is not the role of the Attorney General to speak for, or defend, any public official — such as the Prime Minister or any Minister — in respect of any allegation of misconduct or criminal wrongdoing committed in the public official's private or personal capacity.  The Attorney General oversteps and confuses his constitutional functions and duties if he does so. He lends himself to being in a position of conflict of interest should there be any recommendation made to him, in his role as Public Prosecutor, for legal action or prosecution of that public official.
It was therefore improper for the Attorney General to speak for, or defend, the Prime Minister in the allegations made by the United States Department of Justice ("DOJ") in respect of "MALAYSIAN OFFICIAL 1", who is described by the DOJ as, inter alia, "a high-ranking official in the Malaysian government who also held a position of authority with 1MDB".[3]  The allegations are that funds misappropriated from 1Malaysia Development Berhad ("1MDB") were fraudulently diverted through various intermediaries, and thereafter to various bank accounts, one or more of which were beneficially owned by MALAYSIAN OFFICIAL 1.[4]  These allegations appear to relate to the private and/or personal conduct of the Prime Minister.  By so doing, the Attorney General exceeds his constitutional mandate.
In defending the Prime Minister against the DOJ's allegations, the Attorney General has placed himself in an obvious and untenable position of conflict of interest.  He is disqualified — and must therefore recuse himself immediately — from exercising his prosecutorial powers as Public Prosecutor under Article 145(3) should there be any further recommendation for prosecution over these allegations, because he would not be seen as a neutral decision–maker.
It is also unseemly for any prosecutor to threaten an accused person, for whatever reason, with public disclosure of evidence against that person, which has not yet been produced in court.  Such conduct by the prosecution is to be deplored as it would encourage trial by media, and would compromise the integrity of the criminal proceedings.  It would be viewed as an attempt to incriminate an accused person on unproven evidence, which would lead to prejudice and thwart a fair and just trial.
If any prosecutor is aggrieved by the conduct or statements made by an accused person, he is not left without recourse.  He can have the matter resolved with legal counsel for the accused person; and if that fails, he can raise the matter with the court for appropriate orders to be made.  However, the prosecutor must not resort to any measure that does not promote public confidence in the fair and objective exercise of his prosecutorial powers.  There should be no intimidation of the accused person.
The Malaysian Bar urges the Attorney General to strictly and scrupulously observe his functions and duties as provided for in the Federal Constitution, in steadfastly upholding justice.

Steven Thiru
Malaysian Bar

28 July 2016
[1] Press release by the Attorney General entitled "US DEPARTMENT OF JUSTICE FILING OF CIVIL ACTION", dated 21 July 2016.
[2] "Apandi warns Guan Eng over comments on graft charges", The Star Online, 23 July 2016.
[4] Ibid, paras 99, 119, 193-196, 200-201, 229, 257, and 259-264.

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