Press Release | The Bar is Pro-Rule of Law and Justice, Not Pro-Opposition or Government

Much has been said of the prosecution of Dato’ Seri Anwar Ibrahim, and there appears to be some obfuscation.   Those who are misconstruing or distorting the Malaysian Bar’s press release of 11 February 2015, which was plainly and clearly only in respect of the prosecutorial process, should cease doing so.  

Without recapping the issues raised therein, the Malaysian Bar wishes to address some issues that have arisen in the past week.

The prosecutor-by-fiat in the Dato’ Seri Anwar Ibrahim case has been reported to have been giving interviews, attending roadshows purportedly organised by a political party in Government, and with his name used in suggestions for debates.   It was subsequently reported that the roadshows were not at the behest of or sanctioned by that political party.

Is such conduct befitting or compatible with the dignity of a prosecutor or the office of the Public Prosecutor?  Is it appropriate or proper for a prosecutor to replay the prosecution by way of roadshows or public debates?  Does a fiat given to a prosecutor to conduct a prosecution confer a licence to embark on a public tirade against a convicted and incarcerated person, or has the prosecutor-by-fiat been nevertheless authorised by the Public Prosecutor to undertake these activities?

A former Attorney General is reported to have said that such conduct is unprecedented.

The “Standards of professional responsibility and statement of the essential duties and rights of prosecutors” adopted by the International Association of Prosecutors on 23 April 1999 provide, amongst others, that prosecutors shall:

(1) at all times maintain the honour and dignity of their profession;

(2) always conduct themselves professionally in accordance with the law and the rules and ethics of their profession;

(3) at all times exercise the highest standards of integrity and care;

(4) strive to be, and to be seen to be, consistent, independent and impartial;

(5) always serve and protect the public interest; respect, protect and uphold the universal concept of human dignity and human rights;

(6) remain unaffected by sectional interests and public or media pressures and shall have regard only to the public interest; act with objectivity; and 

(7) preserve professional confidentiality.

 

Furthermore, the “Guidelines on the Role of Prosecutors” adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders in 1990 provide, amongst others, that prosecutors shall:

(1) as essential agents of the administration of justice, at all times maintain the honour and dignity of their profession;

(2) in accordance with the law, perform their duties fairly, consistently, and expeditiously, and respect and protect human dignity and uphold human rights, thus contributing to ensuring due process and the smooth functioning of the criminal justice system; 

(3) carry out their functions impartially and avoid all political, social, religious, racial, cultural, sexual or any other kind of discrimination; 

(4) protect the public interest and act with objectivity; and

(5) keep matters in their possession confidential, unless the performance of duty or the needs of justice require otherwise.

Are prosecutors governed by a set of practice and etiquette rules established by the Public Prosecutor, who is also the Attorney General, in a similar vein to the standards and guidelines referred to above, or the Legal Profession (Practice and Etiquette) Rules 1978 that govern advocates and solicitors?

The Public Prosecutor should perhaps shed light on these matters.

The prosecutorial discretion pursuant to Article 145(3) of the Federal Constitution is vested in the Attorney General.  However, as the late Sultan Azlan Shah once said, there is no such thing as an unfettered discretion, as every discretion has its legal limits.  Thus, although the exercise of discretion may be vested in an office, the exercise of it is accountable and is not beyond scrutiny.

There may thus be occasions when the Public Prosecutor or his office may be required to render an account of the exercise or non-exercise of the prosecutorial discretion or conduct on certain matters raised by the public.  We ought to bear in mind that, in any criminal prosecution, the Public Prosecutor’s office represents the public interest, and not the Government.  Criminal prosecutions are thus in the name of the Public Prosecutor, and not in the name of the Government of Malaysia.

The account or clarification would usually be done in a clinical, measured and dispassionate manner, mindful that the office is a public office acting in furtherance of the public trust.

 

There certainly should be no place for roadshows or debates.

Any roadshow or public debate by a prosecutor with respect to a prosecution he had conducted, culminating in a conviction, would add nothing to the conduct of the prosecution, proceedings or conviction, but may potentially embarrass, or affect the public confidence in or perception of, the office of the Public Prosecutor.

It was also reported that the prosecutor-by-fiat had referred to, and revealed in public, matters or details of proceedings expressly held in camera.

Proceedings held in camera are proceedings that are not conducted in open court, and are without the presence of the public.  The court would usually make directions or set terms as to the ambit of the restriction in terms of any revelation or publication of the matters heard in camera.  Whether it is improper or a contempt of court for a prosecutor (or a prosecutor-by-fiat) or any party to reveal or publish matters and evidence heard in proceedings held in camera would depend on the directions made or terms set, if any, by the court, and whether those directions or terms have been breached.   

The directions or terms made with regard to any particular proceedings held in camera could only be ascertained from the notes of court proceedings on the matter, if available, and any breach thereof would be a matter for the parties involved in the criminal trial or the court itself to take up.

The media release dated 12 February 2015 by the Attorney General is an example of an account or response by the office of the Public Prosecutor in a clinical, measured and dispassionate manner.

We thank the Attorney General for the statistics provided with regard to prosecutions undertaken between 2010 and 2014 pursuant to section 377B of the Penal Code.  It would be informative to have the statistics, if any, for such prosecutions under section 377B from the 1990s to 2009. 

The law is only as good and fair as if it is consistently and equally applied and enforced.  Section 377B, read with section 377A, criminalises both sodomy and oral sex (fellatio).  Section 377D has in the past been used to prosecute a participant or abettor in consensual sodomy.  The offences apply to heterosexuals and homosexuals.  It would be instructive to see what the statistics are for prosecutions for consensual oral sex under section 377B, read with section 377A, and under section 377D.

An analogy was drawn in the Attorney General’s media release with a prosecution for a corruption offence, to explain why the complainant was not charged as a participant for abetment in the prosecution for consensual sodomy against Dato’ Seri Anwar Ibrahim.

Is it a matter of policy, in the overall and long-term public interest, to grant immunity to those who are participants in an offence in order to prosecute other participants, instead of plea bargaining for an admission and lesser sentence, except where the participant is an agent provocateur acting with or emplaced by the authorities in a sting operation?   

In line with the analogy drawn in the said media release, it is to be noted that section 11 of the Whistleblower Protection Act 2010 provides that a participant in an offence cannot enjoy protection under the said Act, including the removal of any immunity from criminal action.  Although this Act came into force subsequent to the charge against Dato’ Seri Anwar Ibrahim and is largely concerned with corruption, it may said that section 11 of the said Act is a statutory codification or reflection of the public interest policy with respect to there being no immunity for participants in offences.

The Bar raises these issues and asks questions because it is pro-rule of law and pro-justice.  The Bar is neither pro-Opposition nor pro-Government.  

Christopher Leong

President

Malaysian Bar