By Wan Saiful Wan Jan, for Thinking Liberally, The Star, 7 July 2015. Also published in The Malaysian Insider 9 July 2015
The political challenges faced by Dato’ Sri Najib Tun Razak continue to mount. He has issued several denials but his detractors are showing no sign of stopping.
Last week internationally respected newspaper The Wall Street Journal published a story alleging that money from 1MDB somehow found its way into Najib’s personal bank account. Najib has denied any wrong doing and he is said to be mulling legal action against the newspaper.
The response by Attorney General Tan Sri Abdul Gani Patail is particularly noteworthy. According to Gani a multi-agency taskforce will probe the allegation, looking into the trail of money from 1MDB and examining if there has been any wrong doings.
Even though Gani did not spell it out word by word, the implication is that our Prime Minister has not stopped agencies in his own government from conducting what could become a criminal probe against himself. This is a healthy step and it is also the right decision by the Prime Minister. The whole saga has been a protracted one and I look forward to its conclusion.
According to reports that cited Gani, the multi-agency investigation team comprises of the Malaysian Anti-Corruption Commission (MACC), the police and our central bank, Bank Negara.
I welcome the formation of this special team. It is imperative that all allegations are investigated thoroughly. To do so does indeed require cooperation from various agencies.
Having said that, I have a concern about how the public will react once this team concludes the investigation. The most important element in any probe that involves public figures is public confidence. For the public to accept the outcome of the investigation, they must believe in integrity of the agencies.
Unfortunately there is a flaw in our system that may prevent the public from giving their complete trust. We inherited that flaw since before independence and until today we have never tried to fix it.
The flaw centres around the dual roles of the Attorney General. He is the principal legal advisor to the government and he is also the one with sole discretion to decide on whether or not to prosecute. Yes there are safeguards to ensure he makes prosecutorial decisions with independence and integrity. But that is a matter procedures. We are talking about a high profile investigation where public confidence and public perception are just as important as everything else.
Imagine a situation where the investigation team found that the allegations were false. They then submit their files to the Attorney General. The Attorney General then would logically decide that there will be no prosecution. How will the public react to this?
My worry is that the public will simplistically say that we are seeing a cover up. Of course we will not know the detailed findings from the investigation and we can’t expect the agencies to be disclosing information in great detail either. But we may end up with the public accusing the Attorney General of merely protecting his boss whom he has been advising all this while. That would be most unfortunate.
However we cannot blame the public for not fully trusting the system. Stories after stories have been told – whether concocted or true – about allegedly selective prosecution. In our work on the MACC, we encountered many of these allegations. Critics target the MACC even when the agency have done their job to investigate, without realising that prosecution powers lie with the Attorney General and not the MACC.
And among those who do know that prosecution is the discretion of the Attorney General, a perception has developed that some people are always safe from prosecution, because they feel the Attorney General has a conflict of interest. How can he be expected prosecute the very people he is supposed to advise?
The fusion of the Attorney General’s roles – as legal advisor to the government and as public prosecutor – has resulted in decreased trust in the integrity of the system.
In cases that involve the government, the public may not have full confidence in his decisions regardless of whether or not he is being independent and honest. And this time it may result in a never ending misery for the Prime Minister even if he is a victim of political sabotage.
I fully appreciate that the Prime Minister and the Attorney General have thousands of other things to worry about at this moment in time. But for their own sake, this is a most urgent issue. The credibility of the Prime Minister is at stake here.
The roles of the Attorney General must be separated. The Attorney General should continue to advise the government but we should create a new Office of Public Prosecutor to decide on prosecution, after the investigative agencies have done their jobs. This has to be done as soon as possible
I appreciate that this is a major step. It requires a constitutional ammendment because Article 145(3) of our Federal Constitution currently provides that the Attorney General has absolute power to institute, conduct or discontinue any proceedings for an offence.
Additionally, the Criminal Procedures Code too will need to be ammended because it currently says: “The Attorney General shall be the Public Prosecutor and shall have the control and direction of all criminal prosecutions under this Code”.
The changes should be debated in the parliamentary sitting. If this is not done now, will anyone be able to save the Prime Minister’s credibility regardless of what the investigation team finds?
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Wan Saiful Wan Jan is the Chief Executive of IDEAS