Spreading the power to prosecute

Giving enforcement agencies direct power to prosecute would diffuse power, reduce corruption and result in greater efficiency.

ONE of the most powerful men in Malaysia is the Attorney-General (A-G). And he is so by virtue of Article 145(3) of the Federal Constitution, which states that:

"The Attorney-General shall have power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for an offence, other than proceedings before a Syariah court, a native court or a court-martial."

That's really very powerful. Note the relevant article says that the power is exercisable at his discretion and that he can institute, conduct or discontinue any proceedings for an offence.

That means he is not accountable to anyone and he can overrule the strongest recommendation to prosecute from anyone without so much as a word of justification.

One can argue about what was the intention of the Constitution and the founding fathers in concentrating so much power in the hands of one man – power that can be very easily abused because of its absoluteness – but one can't change this unless the Constitution is changed.

And it may be something that can be changed even if the ruling coalition does not have a two-thirds majority, because the opposition is willing to consider cooperating to change the Constitution in this respect.

Well, it might be about the only thing the two coalitions agree upon, assuming that enough of the current ruling coalition wants the change and there is no reason why that should not be the case, limited pronouncements by some ministers notwithstanding.

There are a number of key reasons why Article 145 (3) needs to be changed. First and foremost, of course, it puts too much power in the hands of one man who can stop or start any prosecution of anyone at his sole discretion.

This leads to a whole slew of other problems. There are a number of enforcement bodies besides the Police set up under various legislation such as the Malaysian Anti-Corruption Commission (MACC), the Securities Commission (SC), the Companies Commission (CC) and so on.

All of them have to send their investigation papers to the A-G's Chambers for final evaluation of whether prosecution should be made.

That, many of them complain, does not only lead to delays but often non-prosecution of offences because the A-G's Chambers feels there is no case.

However, many of these separate law enforcement bodies have their own teams of experts and their own investigators who are specialists in their areas and in many cases could well may be more competent than staff from the A-G's office.

Common sense will dictate, under those circumstances, that the best process will be to allow the most competent authority to decide on whether prosecution should proceed.

That will deter nefarious ways of stopping prosecution because the power to prosecute will be spread out among more people and not just one person.

Thus, the first thing will be to amend the Constitution to provide for other enforcement agencies to directly prosecute without getting the approval of the A-G.

Next, even if this is done, power to prosecute may vest within a single person in an enforcement authority. Thus, legislation introduced should be such that this power is devolved to a committee of no more than five, who will make a decision on prosecution by simple majority for more complex, high-profile cases.

This process of devolution of power should also be applied to police prosecution so that the A-G does not become the sole authority for deciding on prosecution.

The power to prosecute should be left up to individual deputy public prosecutors (DPPs) and the A-G should have no right to overrule him if the DPP thinks there is a good case to prosecute.

However, in the interest of fair application of the law, if the A-G feels there is a case to prosecute, then he can have the authority to instruct prosecution of the case under a different DPP. That helps to ensure that criminals don't get away when there is a case they have to answer.

By spreading the power to prosecute among many different professional prosecutors from within individual enforcement agencies and between different enforcement agencies, the abuse of power can be substantially reduced.

The A-G's role will become more of an overseer rather than one who makes the decisions directly.

That would also lead to a far more efficient prosecution system because there is no need to go back to one agency and eventually just one person to get approval for the most important of prosecutions.

We really should not be concerned about changing the Constitution here because in this case it aims at reducing the concentration of power and its potential abuse, and increasing the efficiency, speed and competency of prosecution.

All of this will give rise to a better legal system and therefore it should have wide support. In fact, the Parliamentary Select Committee on Corruption has recommended yet again that the MACC be given powers to prosecute to enable it to combat corruption more effectively.

And why not extend it to the SC, the CC and others as well and institute the measures suggested to further devolve the power to prosecute?

With the opposition promising to support such amendments, it would be an easy thing to do to change the relevant section of the Constitution. Dare we hope that it will happen soon and will be put on top of the heap of legislative change being contemplated?

> Independent consultant and writer P. Gunasegaram is reminded of this oft-quoted but powerful saying: "Power tends to corrupt, and absolute power corrupts absolutely" by Lord Acton (1834-1902).

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