The withdrawal of court cases involving matters of public interest in recent times has raised eyebrows and piqued interest on the functions and workings of two legal institutions – the Attorney-General’s Chambers and the judiciary.
Several notable cases which have come under public scrutiny include:
- Acquittal of former Sabah chief minister Datuk Seri Musa Aman involving corruption and money-laundering, yesterday.
- Riza Shahriz Abdul Aziz, the stepson of Datuk Seri Najib Razak, given a discharge not amounting to acquittal on five counts of money-laundering charges involving US$248mil (RM1.25bil) linked to 1Malaysia Development Bhd, on May 14.
- Discharge and acquittal of former Penang Chief Minister Lim Guan Eng involving the conversion of land status and purchase of a bungalow below market price in September 2018.
- The dropping of 34 charges against 12 people (including two DAP politicians – Gadek assemblyman G. Saminathan and Seremban Jaya assemblyman P. Gunasekaran – allegedly involved with Sri Lanka’s Liberation Tigers of Tamil Eelam (LTTE), in February this year.
Attorney-General (A-G) Tan Sri Idrus Harun issued statements regarding the decisions involving Riza Aziz and Musa Aman’s cases last month and yesterday respectively.
Idrus, in his latest statement, said the inability to obtain vital documentary evidence from Hong Kong was among the reasons for freeing Musa of his 46 charges.
Senior lawyer Datuk Jahaberdeen Mohamed Yunoos said public perception on the judicial and prosecutorial landscape has changed dramatically since May 9, 2018.
“While it is partially because of a change in government, it is also partially due to public ignorance of how the process works,” Jahaberdeen said.
“Quite a number of cases were withdrawn by the public prosecutor after Pakatan Harapan won. It is a record number and has never happened before in such a short time in Malaysian history.
Jahaberdeen said many high-profile cases involving matters of public interest were withdrawn during Tan Sri Tommy Thomas’ tenure as attorney-general.
“The fact that Thomas had said he is a political appointee also did not help placate the rakyat’s concern.
“It gives the perception the attorney-general is political rather than apolitical and this erodes public confidence in the A-G’s chambers.”
After Thomas resigned, he was quoted by a news portal in March as saying: “My position as A-G was that of a political appointee and made by Tun Dr Mahathir Mohamad.”
Jahaberdeen also noted that the AGC has come under the radar also because of the wide powers vested in the attorney-general under Article 145 of the Federal Constitution which accords sole discretion on deciding whether or not to continue or discontinue proceedings.
“The A-G is actually not required to inform the public anything. They are not even required to inform the court why they are instituting or withdrawing a charge and this is a matter which is not known to the people,” he said.
Jahaberdeen also said it was common in criminal practice for representations to be made for various considerations.
“For example, there can be a complete or partial withdrawal (of a charge) as long as the representations are done properly and above board.
“Representations will also save public funds but we have to be extra careful and more transparent when it concerns cases of public interest because these generate and frame public perception on legal institutions,” he said.
Jahaberdeen said it is time for such a practice to evolve in line with the maturity of the nation.
“It is time that the AGC engaged with the public by informing why a particular case is withdrawn.
“The AGC should be mature enough to know that in many instances, they must give reasons to the public so the public’s confidence in the institution is secure and safeguarded.”
Jahaberdeen also said when the attorney-general fails to give reasons to the public regarding the decision to withdraw a case, the judiciary will become the victim of wrong perception.
“The court cannot do anything if the AGC wants to withdraw a charge. Unfortunately, but more often than not, the public ends up blaming the court.
“The public feels the judiciary is in cahoots (with the A-G) … but it is not.
“The only thing the court can do is either grant a discharge amounting to an acquittal or discharge not amounting to an acquittal. The court cannot say I insist to proceed when the public prosecutor wants to withdraw a charge.
“But when there is no explanation provided (by the A-G), then there is speculation,” he said.
Judiciary’s hands are tied
Retired Court of Appeal judge Datuk Seri Shaik Daud Ismail said the hands of the judiciary are tied by virtue of the discretionary powers vested upon the A-G to initiate or withdraw charges against individuals.
“It is the A-G who withdraws the charge and is not obliged to give reasons. The A-G is not accountable to the public and so no one will know what it is all about (why a case is being withdrawn).
“The court cannot tell the A-G that he cannot withdraw a case and this is where the problem lies.
“The best way is to raise such matters in Parliament. If it (withdrawal of cases) involves one or two cases, then there is no need but there have been so many,” he said.
Shaikh Daud said people are raising questions now as many of these cases involve politicians.
“Once a case involves politicians, people will start questioning (the withdrawals) and they may be thinking something must be wrong somewhere.”
“We cannot be blamed as the prerogative to proceed or not to proceed a charge against somebody lies with the A-G and it cannot be questioned,” he added.
What role can the judiciary play?
Jahaberdeen says the judiciary is supposed to be press-shy.
“But, on and off, I suggest that the chief justice (Tan Sri Tengku Maimun Tuan Mat) embark on an education process with the public to educate the masses.
“The chief justice cannot hide in the ivory tower of justice in a modern society. She must come out and explain to the public the various processes of the judiciary,” he said.
He said while he feels sorry for the judiciary, we also cannot fault the public for being unhappy or at unease with charging people and withdrawing cases.
“The people would assume that whenever the AGC initiates a proceeding against someone, the matter would have gone through a rigorous process of investigation by the police and the chambers.
“The public will be confused as to why certain public-interest cases after going through rigorous processes, are being withdrawn,” he said, adding a negative perception will arise if there is no credible and reasonable explanation from the authorities.”