The Star
COMMENT By DATUK K.C. VOHRAH
COMMENT By DATUK K.C. VOHRAH
Should the MACC be given the power to prosecute cases of corrupt practices?
IT is best that the investigators investigate, prosecutors prosecute and the trying and sentencing be left to the courts,” said Bertrand de Speville, former head of Hong Kong’s well-respected Independent Commission Against Corruption (1993 to 1996).
He made the comments in relation to the Malaysian Anti-Corruption Commission (MACC) during a question-and-answer session while on a visit in Kuala Lumpur recently to promote his book Governing Corruption – The Essentials.
The fact is the MACC does not have the power to initiate prosecution for offences of corrupt practice.
But many believe that it has and there is a perception that it has been selective in the prosecution of cases, especially those involving politicians, in that those who should be prosecuted are not.
He made the comments in relation to the Malaysian Anti-Corruption Commission (MACC) during a question-and-answer session while on a visit in Kuala Lumpur recently to promote his book Governing Corruption – The Essentials.
The fact is the MACC does not have the power to initiate prosecution for offences of corrupt practice.
But many believe that it has and there is a perception that it has been selective in the prosecution of cases, especially those involving politicians, in that those who should be prosecuted are not.
There is also the perception that the Public Prosecutor interferes in directing the prosecution of cases by MACC where there should not be any prosecution. And clearly there is much disquiet over the MACC losing a number of cases over the years.
The implicit blame is on the Attorney-General (A-G) where, it is believed, the residual power to prosecute is vested.
And over the years there have been calls from politicians from both sides of the political divide, lawyers and concerned citizens for the power to prosecute to be wholly vested in the MACC in respect of corrupt practice cases.
Power to prosecute solely with A-G (PP)
Under the Constitution, the person who holds office as A-G is the Chief Legal Adviser of the Federal Government (Article 145(2)).
Though not so named in the Constitution as Public Prosecutor, he is concurrently the person who has the 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 court martial (Article 145 (3)).
In many laws and the Criminal Procedure Code (CPC), there are provisions where officials may institute or conduct proceedings for offences committed under such laws, but it has been held (see Repco Holdings Bhd v PP [1997] 3 MLJ 681) that as the Constitution exclusively authorises the A-G to institute, conduct or discontinue proceedings for an offence, it must follow that no other authority may be lawfully empowered with that function.
Although there are other High Court decisions expressing reservations on Repco, it appears to hold sway in the criminal justice system.
Thus, to say the MACC is selective in its prosecution is to ignore that it has no power to initiate prosecution.
The PP and DPPs
Under s376(1) of the CPC, it is stated that the A-G shall be the Public Prosecutor (PP) and the PP shall have the control and direction of all criminal prosecutions and proceedings under the CPC.
To put the blame on the A-G as PP for interfering in the prosecution of cases is to misunderstand how prosecution is carried out by that office.
Obviously, neither he nor his second in command, the Solicitor-General, can carry out all the PP’s powers under the CPC or other laws.
Thus, the CPC provides for him to appoint Deputy Public Prosecutors (DPPs), who will be under his general control and direction.
These DPPs may exercise all or any of the powers vested in and exercisable by the PP under the Code or any written law except any rights or power expressed to be exercisable by the PP personally (s376 (3)).
DPPs have been attached to the predecessor bodies of the MACC, i.e. the Anti-Corruption Agency (ACA), the National Investigation Bureau and then the ACA.
These DPPs were sent to the ACA where a legal division was set up.
There they functioned not as officers of the ACA but as delegates of the PP and had no contact with the officers and staff of the ACA in their legal work.
The duty of a DPP, even now where investigation papers on corrupt practice against someone reach his desk, is to decide whether to initiate criminal proceedings in court.
It is only then that he meets the investigating officer or officers to discuss the case in order to conduct his prosecution in court.
Ordinarily, before the DPP decides on the investigation papers to initiate criminal proceedings, the investigating officer would have sent the papers to his immediate superior officer with his recommendation.
The papers would then be sent to succeeding superior officers until they reach the head of the institution for his final say.
They then go to the DPP who might minute back to the head for more investigations to be carried out.
The DPP keeps his distance from staff of the institution so that his decision is not coloured by extraneous factors.
In the good old days, you had renowned DPPs like Hassan Ishak, Datuk Shaik Daud Ismail and Datuk Kadir Sulaiman who were objective and highly professional in the execution of their duties in the ACA.
Hassan passed on while in service but Shaik Daud became head of the Criminal Prosecution in the A-G’s Chambers and ended as a no-nonsense and objective Judge of the High Court and the Appeal Court.
Kadir became legal adviser of a state and eventually ended as a Federal Judge.
These clean men set high standards in the ACA.
Check-and-balance
Perhaps the best reason for keeping investigation powers separate from prosecution powers has been given by Minister in the Prime Minister’s Department Datuk Seri Nazri Aziz.
Recently, he stressed that there was the need for a check-and-balance between the investigation side and the prosecution when he dismissed calls for such power to be vested in the MACC.
A lawyer who is employed as a career officer in a department, and is the prosecutor (although not a DPP) in that department, would find a certain sense of familiarity with other non-lawyer officers and their views which might cloud his objectivity in assessing the evidence for a case to be prosecuted.
The forensic environment with unorthodox methodology, where the “evidence” uncovered may be inadmissible in a court of law for a whole number of reasons, may again cause loss of objectivity in the prosecutor.
His view of the case may be coloured by irrelevant considerations that a case has been made out for prosecution.
This loss of objectivity can even happen to DPPs and Federal Counsel who are attached to government departments, what more to counsel who are recruited as career officers in the department.
I remember an incident, though it has nothing to do with a prosecutor’s powers.
A legal adviser from the A-G’s office attached to a ministry gave an opinion that a statutory body which had express powers to do something under the provisions of the law could not in law do so because that was not in accordance with the policy of the ministry!
Policy had become law! The legal adviser had become so immersed in the policies and environment of the ministry he worked in that policy had become law.
It is not permissible for a lawyer, let alone a government lawyer, to cloud his interpretation of the law with personal views and factors extraneous to the issues at hand.
The further detached he is from the biases, prejudices, colourable views and policies in relation to the matter referred to him or the matter investigated, the better he is able to see the issues and the law applicable to them.
The overriding principle must be to give legal advice and take decisions based on a scrupulous approach to the law.
As a matter of prudence and common sense, an investigation body should not be allowed to be tempted by blind adherence to the interest of the body’s mission to fight crime, whatever type it may be, to discard objectivity or to take unsavoury methods to secure a conviction.
Loss of MACC cases
As for putting the blame for the loss of cases in court on the PP and his coterie of DPPs, to be fair, look at the reasons that might explain what actually happened.
With DPPs in the MACC, not all cases go to Public Prosecutor for advice.
The DPPs in the MACC would have evaluated the cases without reference to the Public Prosecutor which, under the law, they can do as they have been given the power by the PP.
The PP always has the final say.
Could it be that their assessment of the cases were clouded by their being in the midst of the MACC investigators?
Or were they given instruction from the MACC which acts on external influence?
That the MACC acts on external influence should, of course, be unthinkable.
Could the DPPs have been misled and lulled by the recommendations of the investigating officer and the approval routinely given by the hierarchy of superior officers?
As an aside, how many persons have been let off due to shoddy and flawed investigations?
On the other hand, could it be that the evidence was stale or the witnesses had turned hostile?
Yet another factor to look into is whether the DPPs in the MACC have enough experience in prosecution to do the trials.
Then there are the cases that are referred to the Public Prosecutor.
Usually, cases that go up to the Public Prosecutor or his office would be difficult, sensitive or high-profile ones that would have the recommendation of the DPPs in MACC either for prosecution or for no further action.
Or the PP may call up certain cases.
If the instructions are to proceed with them, these cases would go back to the DPPs in the MACC to prosecute.
If the cases are lost, it could be for the various reasons already mentioned and also the fact that the DPPs attached to the MACC could have recommended no further action be taken and that was ignored.
The way forward
We can see that the MACC suffers from a perception problem with regard to its role and its ability to bring wrongdoers to book.
The way forward is to hold the A-G accountable to Parliament and to create a separate and independent office for the Public Prosecutor.
Since independence in 1957, except for the period of Tan Sri Abdul Kadir Yusuf’s tenure as ministerial A-G in the 1970s, the A-G has come from the ranks of the Judicial and Legal Service.
In other words, only for a brief period during Abdul Kadir’s tenure was the A-G (and concurrently the PP) accountable to Parliament as a member of the Executive, he having been made a Minister.
In Britain, Australia, Canada, New Zealand and Scotland, there is a common feature that the A-G is a member of the Executive and is, therefore, accountable to the legislature in respect of the office of PP.
When Abdul Kadir was the ministerial A-G, he fielded all questions relating to the work of the A-G and the PP in and outside of Parliament.
During that period, in fact, the work of prosecution was almost entirely in the hands of Tun Salleh Abas, the Solicitor-General who was the de facto PP. It was a good arrangement which ran very well.
Abdul Kadir engaged Parliament and the public on the work of the prosecution. As A-G, he in fact exercised superintendence on big matters of public interest and the powers under various laws mandated only to the A-G. This accountability to Parliament should be revived as the A-G in his capacity as PP under Article 145 has absolute power which the courts will not question.
As for a separate and independent office of the PP, I believe it is time for this position to be created under the Constitution to deal solely with prosecutions.
There should be the right of the A-G to be consulted and informed about difficult, sensitive and high-profile cases provided the decision to prosecute rests with the PP, except for cases where the consent of the A-G is required under laws relating to consent by him and the power to terminate criminal proceedings on charges by issuing a nolle prosequi.
There are many issues that need to be sorted out with regard to these two measures.
But to the question of whether the MACC should be vested with prosecution powers, I would give it an unequivocal “no”.
Power to prosecute should not be vested in the MACC.
If that is done, it would not be long before the police, immigration and various departments would demand for power to prosecute to be vested on them in their laws.
The power should be vested in an entity that works independently and is answerable to Parliament through a ministerial A-G.
Datuk K. C. Vohrah was called to the Bar in 1964. He joined the Judicial and Legal Service in late 1965. He was Treasury Solicitor, then head of the Advisory Division, A-G’s Chambers. Appointed High Court Judge in 1986, he retired as Court of Appeal Judge in 2002. He co-authored the fifth edition of Sheridan and Groves “The Constitution of Malaysia” (2004) and Vohrah and Hamid’s “On The Malaysian Penal Code” (2005). He is a consultant with a legal firm and is adjunct professor in Universiti Utara.
The implicit blame is on the Attorney-General (A-G) where, it is believed, the residual power to prosecute is vested.
And over the years there have been calls from politicians from both sides of the political divide, lawyers and concerned citizens for the power to prosecute to be wholly vested in the MACC in respect of corrupt practice cases.
Power to prosecute solely with A-G (PP)
Under the Constitution, the person who holds office as A-G is the Chief Legal Adviser of the Federal Government (Article 145(2)).
Though not so named in the Constitution as Public Prosecutor, he is concurrently the person who has the 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 court martial (Article 145 (3)).
In many laws and the Criminal Procedure Code (CPC), there are provisions where officials may institute or conduct proceedings for offences committed under such laws, but it has been held (see Repco Holdings Bhd v PP [1997] 3 MLJ 681) that as the Constitution exclusively authorises the A-G to institute, conduct or discontinue proceedings for an offence, it must follow that no other authority may be lawfully empowered with that function.
Although there are other High Court decisions expressing reservations on Repco, it appears to hold sway in the criminal justice system.
Thus, to say the MACC is selective in its prosecution is to ignore that it has no power to initiate prosecution.
The PP and DPPs
Under s376(1) of the CPC, it is stated that the A-G shall be the Public Prosecutor (PP) and the PP shall have the control and direction of all criminal prosecutions and proceedings under the CPC.
To put the blame on the A-G as PP for interfering in the prosecution of cases is to misunderstand how prosecution is carried out by that office.
Obviously, neither he nor his second in command, the Solicitor-General, can carry out all the PP’s powers under the CPC or other laws.
Thus, the CPC provides for him to appoint Deputy Public Prosecutors (DPPs), who will be under his general control and direction.
These DPPs may exercise all or any of the powers vested in and exercisable by the PP under the Code or any written law except any rights or power expressed to be exercisable by the PP personally (s376 (3)).
DPPs have been attached to the predecessor bodies of the MACC, i.e. the Anti-Corruption Agency (ACA), the National Investigation Bureau and then the ACA.
These DPPs were sent to the ACA where a legal division was set up.
There they functioned not as officers of the ACA but as delegates of the PP and had no contact with the officers and staff of the ACA in their legal work.
The duty of a DPP, even now where investigation papers on corrupt practice against someone reach his desk, is to decide whether to initiate criminal proceedings in court.
It is only then that he meets the investigating officer or officers to discuss the case in order to conduct his prosecution in court.
Ordinarily, before the DPP decides on the investigation papers to initiate criminal proceedings, the investigating officer would have sent the papers to his immediate superior officer with his recommendation.
The papers would then be sent to succeeding superior officers until they reach the head of the institution for his final say.
They then go to the DPP who might minute back to the head for more investigations to be carried out.
The DPP keeps his distance from staff of the institution so that his decision is not coloured by extraneous factors.
In the good old days, you had renowned DPPs like Hassan Ishak, Datuk Shaik Daud Ismail and Datuk Kadir Sulaiman who were objective and highly professional in the execution of their duties in the ACA.
Hassan passed on while in service but Shaik Daud became head of the Criminal Prosecution in the A-G’s Chambers and ended as a no-nonsense and objective Judge of the High Court and the Appeal Court.
Kadir became legal adviser of a state and eventually ended as a Federal Judge.
These clean men set high standards in the ACA.
Check-and-balance
Perhaps the best reason for keeping investigation powers separate from prosecution powers has been given by Minister in the Prime Minister’s Department Datuk Seri Nazri Aziz.
Recently, he stressed that there was the need for a check-and-balance between the investigation side and the prosecution when he dismissed calls for such power to be vested in the MACC.
A lawyer who is employed as a career officer in a department, and is the prosecutor (although not a DPP) in that department, would find a certain sense of familiarity with other non-lawyer officers and their views which might cloud his objectivity in assessing the evidence for a case to be prosecuted.
The forensic environment with unorthodox methodology, where the “evidence” uncovered may be inadmissible in a court of law for a whole number of reasons, may again cause loss of objectivity in the prosecutor.
His view of the case may be coloured by irrelevant considerations that a case has been made out for prosecution.
This loss of objectivity can even happen to DPPs and Federal Counsel who are attached to government departments, what more to counsel who are recruited as career officers in the department.
I remember an incident, though it has nothing to do with a prosecutor’s powers.
A legal adviser from the A-G’s office attached to a ministry gave an opinion that a statutory body which had express powers to do something under the provisions of the law could not in law do so because that was not in accordance with the policy of the ministry!
Policy had become law! The legal adviser had become so immersed in the policies and environment of the ministry he worked in that policy had become law.
It is not permissible for a lawyer, let alone a government lawyer, to cloud his interpretation of the law with personal views and factors extraneous to the issues at hand.
The further detached he is from the biases, prejudices, colourable views and policies in relation to the matter referred to him or the matter investigated, the better he is able to see the issues and the law applicable to them.
The overriding principle must be to give legal advice and take decisions based on a scrupulous approach to the law.
As a matter of prudence and common sense, an investigation body should not be allowed to be tempted by blind adherence to the interest of the body’s mission to fight crime, whatever type it may be, to discard objectivity or to take unsavoury methods to secure a conviction.
Loss of MACC cases
As for putting the blame for the loss of cases in court on the PP and his coterie of DPPs, to be fair, look at the reasons that might explain what actually happened.
With DPPs in the MACC, not all cases go to Public Prosecutor for advice.
The DPPs in the MACC would have evaluated the cases without reference to the Public Prosecutor which, under the law, they can do as they have been given the power by the PP.
The PP always has the final say.
Could it be that their assessment of the cases were clouded by their being in the midst of the MACC investigators?
Or were they given instruction from the MACC which acts on external influence?
That the MACC acts on external influence should, of course, be unthinkable.
Could the DPPs have been misled and lulled by the recommendations of the investigating officer and the approval routinely given by the hierarchy of superior officers?
As an aside, how many persons have been let off due to shoddy and flawed investigations?
On the other hand, could it be that the evidence was stale or the witnesses had turned hostile?
Yet another factor to look into is whether the DPPs in the MACC have enough experience in prosecution to do the trials.
Then there are the cases that are referred to the Public Prosecutor.
Usually, cases that go up to the Public Prosecutor or his office would be difficult, sensitive or high-profile ones that would have the recommendation of the DPPs in MACC either for prosecution or for no further action.
Or the PP may call up certain cases.
If the instructions are to proceed with them, these cases would go back to the DPPs in the MACC to prosecute.
If the cases are lost, it could be for the various reasons already mentioned and also the fact that the DPPs attached to the MACC could have recommended no further action be taken and that was ignored.
The way forward
We can see that the MACC suffers from a perception problem with regard to its role and its ability to bring wrongdoers to book.
The way forward is to hold the A-G accountable to Parliament and to create a separate and independent office for the Public Prosecutor.
Since independence in 1957, except for the period of Tan Sri Abdul Kadir Yusuf’s tenure as ministerial A-G in the 1970s, the A-G has come from the ranks of the Judicial and Legal Service.
In other words, only for a brief period during Abdul Kadir’s tenure was the A-G (and concurrently the PP) accountable to Parliament as a member of the Executive, he having been made a Minister.
In Britain, Australia, Canada, New Zealand and Scotland, there is a common feature that the A-G is a member of the Executive and is, therefore, accountable to the legislature in respect of the office of PP.
When Abdul Kadir was the ministerial A-G, he fielded all questions relating to the work of the A-G and the PP in and outside of Parliament.
During that period, in fact, the work of prosecution was almost entirely in the hands of Tun Salleh Abas, the Solicitor-General who was the de facto PP. It was a good arrangement which ran very well.
Abdul Kadir engaged Parliament and the public on the work of the prosecution. As A-G, he in fact exercised superintendence on big matters of public interest and the powers under various laws mandated only to the A-G. This accountability to Parliament should be revived as the A-G in his capacity as PP under Article 145 has absolute power which the courts will not question.
As for a separate and independent office of the PP, I believe it is time for this position to be created under the Constitution to deal solely with prosecutions.
There should be the right of the A-G to be consulted and informed about difficult, sensitive and high-profile cases provided the decision to prosecute rests with the PP, except for cases where the consent of the A-G is required under laws relating to consent by him and the power to terminate criminal proceedings on charges by issuing a nolle prosequi.
There are many issues that need to be sorted out with regard to these two measures.
But to the question of whether the MACC should be vested with prosecution powers, I would give it an unequivocal “no”.
Power to prosecute should not be vested in the MACC.
If that is done, it would not be long before the police, immigration and various departments would demand for power to prosecute to be vested on them in their laws.
The power should be vested in an entity that works independently and is answerable to Parliament through a ministerial A-G.
Datuk K. C. Vohrah was called to the Bar in 1964. He joined the Judicial and Legal Service in late 1965. He was Treasury Solicitor, then head of the Advisory Division, A-G’s Chambers. Appointed High Court Judge in 1986, he retired as Court of Appeal Judge in 2002. He co-authored the fifth edition of Sheridan and Groves “The Constitution of Malaysia” (2004) and Vohrah and Hamid’s “On The Malaysian Penal Code” (2005). He is a consultant with a legal firm and is adjunct professor in Universiti Utara.
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