What Happened?
Of late, the dropping of criminal charges has become synonymous with a change in the Malaysian government. Politicians previously entangled in corruption allegations during the prior administration find their charges abruptly dropped once their own party or coalition secures victory in the General Election.
In September 2018, shortly after Pakatan Harapan managed to wrestle Putrajaya away from the firm grasp of Barisan Nasional, the Public Prosecutor (“PP”) requested for the High Court to dismiss the prosecution of Lim Guan Eng, the then-Finance Minister.
Before the change in government, he was accused of abusing his power as the then-Chief Minister of Penang to acquire a heavily discounted bungalow for himself.
Fast forward to September 2023, and history seems to be repeating itself with the sudden drop of charges against Zahid Hamidi, the Deputy Prime Minister of the current Unity Government.
Following his party's loss in the 2018 General Election, Zahid Hamidi faced a total of 47 corruption charges related to the alleged misappropriation of funds from his charitable foundation.
It is painfully evident that these prosecutions and subsequent withdrawals carry political overtones. Especially in Zahid’s case, where the prosecution is now making an about-turn after going through the pains of successfully establishing a prima facie case against him, prior to the change in government.
To many Malaysians, it appears as though that the government of the day (whichever party it may be) is wielding the judiciary as a mere instrument to jail their adversaries and free their allies. It is a disheartening perspective.
Thus, the Bar Council has recently sought to challenge the prosecution's decision in dropping the Deputy PM's charges. This challenge is by way of judicial review, requesting for the court to declare the PP's decision unconstitutional.
But a pressing question arises:
Do judges actually have the authority to intervene and halt the dropping of charges?
Powers of the Public Prosecutor
Our first reference lies in the paramount source of Malaysian law, the Federal Constitution. Article 145(3) of the Federal Constitution bestows solely upon the Attorney General (“AG”) the power to begin, continue, and shut down any criminal proceeding.
But why are we talking about the AG here, instead of the Public Prosecutor (“PP”)? That is because the AG is also the PP! According to Section 376(1) of the Criminal Procedure Code, the AG is the PP who has control over the who, what, when, where, and how of all criminal prosecutions and proceedings.
Of course, one man will not be able to do all that. That is why there are Deputy Public Prosecutors (“DPPs”) who are appointed or deputised to exercise the powers of the PP on his behalf.
DPPs are the prosecutors who we usually see in court, conducting the prosecution’s case on behalf of the PP, including making applications to withdraw charges.
Powers of the Court
Once the prosecution applies for a withdrawal, the ball is in the Court’s court. What can they do?
Surprise! Malaysian courts have no power to intervene in the PP-AG’s decision to withdraw from a prosecution. This much has been enunciated by the Supreme Court in 1974. [1] In other words, the PP-AG’s executive power is pretty much absolute (and vulnerable to be tainted by political pressure).
That’s pretty much the position in Malaysia, unfortunately. Maybe we should take a perspective wider than Malaysia for some inspiration.
Shifting our focus now onto India, a jurisdiction which shares significant similarities with our legal system. Yet, they have taken a completely different approach on this matter.
In 2014, the Indian Supreme Court flexed its muscles and rejected an application by the PP to withdraw charges against a police officer. [2] The Court noted that the PP had been “totally guided by the order of the Government” and did not apply his mind to the facts of the case.
Considering the gravity of the offence (the police officer was accused of demanding a bribe to turn a blind eye towards a kidnapper) and its impact on the public, the Court observed that the withdrawal would not advance the cause of justice nor serve public interest.
The importance of an independent PP was stressed again as recently as 2021, where the Indian Supreme Court laid down guidelines to evaluate prosecutorial withdrawals. [3] They include the following points:
The PP must formulate an independent opinion.
A request by the Government to withdraw by itself, will not automatically result in the failure of the withdrawal application. The court must still evaluate at the reasons given by the PP.
The Court’s judicial function is supervisory in nature.
There must not be an attempt to interfere with the normal course of justice for illegitimate purposes.
The application must be in good faith, in the interest of public policy and justice, and not to thwart the legal process.
Last but not least, the Court must scrutinise the nature and gravity of the offence and its impact on public life, especially when it involves public funds and the discharge of public trust is implicated.
What Can Be Done?
An Independent PP
Much has been discussed about the separation of roles between the AG and PP. This is not a new or radical idea anymore. Since December 2022, the government has also been working on separating the two offices which has been and is still held by one man (unlimited powerrr and unlimited work, heh).
Why is it taking so long? Maybe a few or more corruption proceedings are still ongoing in court? 😶
Fortunately and unfortunately, a task force to expedite this process was only proposed — not formed — on 12th September 2023, 10 months after the initial proposal.
The idea behind such a separation is to ensure the independence of the PP, which is the focus of this part.
As mentioned above, the PP decides the who, what, when, where, and how of the initiating and dropping of criminal prosecutions.
On the other hand, the AG’s role is mainly advisory. He tells the government if certain proposals or actions are within legal bounds or not. For example, if a Minister decides to propose a new law, the idea will go through the AG to vet for any inconsistencies with the Constitution.
Although technically appointed by the King, the PP-AG’s real boss is the Prime Minister and his/her Cabinet (since the King acts on advice), which is a huge problem.
For example, when a Minister commits a crime, there are bound to be some serious conflicts of interest. How can one prosecute their own boss without the risk of being fired immediately?
This has happened before (crazy!). Former AG Abdul Gani Patail was swiftly removed for health reasons around the time it was discovered that he had drafted charges to prosecute former PM Najib Razak for corruption (chill, it's just a coincidence). The whole system has got to change to end this practice.
To keep it short, an independent PP essentially means that the PP must be yanked away from the influence of the Executive i.e., the government of the day.
In our opinion, the procedure for the appointment and removal of the PP should be more similar to how judges are appointed and removed, which better guarantees independence.
The following procedural proposal is intended to ensure that the PP can carry out its duty without fear nor favour.
Firstly, there should be an Appointment / Selection Committee comprising of legal experts and laypersons who will consider and vet candidates. In the spirit of democracy, this Committee would then propose a list of names to Parliament for a debate and a vote, where one PP candidate will be elected.
After that the PP is accountable to Parliament. As such, the conduct of the PP may be discussed in Parliament only if 1/4 of the House agrees to do so (to protect the PP from unnecessary politics).
Recalling the removal of Former AG Abdul Gani Patail, we also propose that the PP should be given reasonable security of tenure.
Thus to remove the PP, a special tribunal or parliamentary committee should be set up to investigate any alleged wrongdoing of the PP, and its findings should be tabled in Parliament. After which, a vote should be held to remove the PP by simple majority, just as how he/she was first elected.
Although different from our idea, a detailed selection and removal process was proposed in this 2016 paper by Aira Nur Ariana Azhar and Lim Wei Jiet. Have a read!
Revival of Judicial Activism
When it comes to controversial issues, Malaysian courts, even at the highest level, have been conservative in deciding against the government of the day. Although self-restraint is a virtue, the impression is that our courts have unduly or prematurely shackled themselves.
Maybe they are still haunted by the spectre of the 1988 Judicial Crisis, where Tun Suffian, the Lord President of the Supreme Court (now called Chief Justice) went head-to-head with Dr Mahathir, the Prime Minister, which resulted in the sacking of Tun Suffian and the “clipping” of the Courts’ wings.
Nevertheless, it is our position that due to its ability to exercise “inherent judicial powers” (which need not be provided by written law), the Court is the most effective institution for the check and balance of the government of the day.
Being the only institution with that kind of power, it therefore becomes a responsibility for the Courts to exercise it proactively. In other words, the one with the muscles should do the heavy lifting. Otherwise, no one else can.
Perhaps Malaysian judges could take a page out of the Indian courts’ book, and lead societal change boldly from the front.
After all, isn't it the essence of our judicial system to uphold the principle of fiat justitia ruat caelum — let justice be done though the heavens fall?
[1] Long bin Samat [1974] 2 MLJ 152
[2] Bairam Muralidhar vs State of Andhra Pradesh (2014) 10 SCC 380
[3] The State of Kerala v K. Ajith & Ors (2021) SCC Online SC 510
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