Contrary to the government's assertion in Parliament last week, the power and discretion vested upon the Attorney-General (A-G) to institute, conduct or discontinue any proceedings have on many an occasion been used arbitrarily and capriciously.

In the eyes of the public, particularly since 1988, the office of the A-G has been used as a political tool in subservience to the executive branch of the government.

The insistence in Parliament by Minister in the Prime Minister's Department Tengku Adnan Tengku Mansor ( photo ) that A-Gs in office have used their discretionary powers "responsibly and without bad faith" is wrong and misleading when one looks at the facts.

The minister, was responding to Gelang Patah MP Chang See Ten who, apart from raising the issue of transparency in judicial promotions last week, had claimed that the A-G's "immunity was 'unreasonable' since even the prime minister and his cabinet were answerable to the Parliament".

Tengku Adnan also told parliament that the government will not set up a mechanism to make the A-G accountable to the public for his actions. He added that those who were dissatisfied with the A-G's decisions could challenge these in court.

'Long history'

The abuse of the A-G's role and power can be traced back to 1988 when then Lord President Tun Mohamed Salleh Abas was sacked.

Tengku Adnan should read 'Freedom Under Executive Power in Malaysia', a book by de facto Law Minister and his colleague in the PM's Department, Rais Yatim, where the latter shows how then A-G Abu Talib Osman ( photo ), was far from being "responsible" in the use of his powers.

"It is significant to point out that the Attorney-General, Abu Talib Osman, who was completely relied upon by the Prime Minister during the crisis, played an outstanding role in the removal of Salleh (Abas). Subsequently he also played a similar role in the removal of two other Supreme Court Judges in his capacity as 'assistant' to the Tribunal," wrote Rais.

"In the first place, the Attorney-General who is at all material times the legal advisor to the Prime Minister and thus an officer of the executive should not have been involved in the Tribunal's work at all.".

Abu Talib's decision not to initiate prosecution in the RM2.5 billion Bumiputra Malaysia Finance scandal in 1984 (in which there were allegations of the involvement of senior government officials) and his instructions to destroy video cassettes and photographs that might have incriminated a former parliamentary speaker, provide further evidence of the consequences of the A-G not being called to accountability.

Complaints galore

Perhaps at no other time were the powers vested in the A-G used wrongly than during the tenure of Abu Talib's successor, the late Mohtar Abdullah ( photo ), who was severely criticised for practising "selective prosecution".

In January 2001, DAP national chairman Lim Kit Siang, who - when arguing against Mohtar's appointment as a Federal Court judge - pointed to the former A-G's "highly controversial stewardship of the office of Attorney-General...as many of the high-profile cases initiated and handled by him in the past seven years were critical to deepening the crisis of confidence in the system of justice over the lack of a just rule of law".

Some of these high-profile cases included Mohtar's decisions to:

  • clear then Lord President Hamid Omar of any impropriety;

  • withdraw corruption charges against Sabah politician Jeffrey Kitingan;

  • withdraw an unlawful assembly charge against Yong Teck Lee;

  • not take action against a former High Court judge who wrote a 33-page poison pen letter "highly seditious, defamatory, derisive" of the judiciary; and

  • decide that there was no case against then Chief Justice Eusoff Chin over allegations of misconduct.

    • His decision to prosecute rights activist and Tenaganita head Irene Fernandez ( photo ) under the Printing Presses and Publications Act for claims she made in 1995 of mistreatment of detainees at an immigration detention centre - a trial which is in its seventh year - serves as additional evidence of his questionable use of the discretionary powers of his office.

    Mohtar's efforts to prosecute DAP leader Lim Guan Eng (who was then convicted and imprisoned), to charge lawyer Karpal Singh ( photo) for sedition over remarks the latter had made in court and his 'persecution' of former deputy premier Anwar Ibrahim, remove any nagging doubts about how the A-G's powers can be and have been misused and abused.

    This point is reinforced by lawyer Manjeet Singh Dhillion's statutory declaration on how the A-G's Chambers under Mohtar could resort to "blackmail and extortion of the highest culpability" and "descended to such levels in the creation and collection of evidence".

    The former A-G was also accused of interfering with the course of justice and for allegedly failing in his constitutional duty to prosecute former Malacca Chief Minister Rahim Tamby Cik and International Trade and Industry Minister Rafidah Aziz for corruption, although the ACA and his own chambers were satisfied that there was sufficient evidence for prosecution.

    Such abuse of power became as bright as day during the trial last year of Keadilan Youth chief Mohd Ezam Mohd Nor, who was charged with breaching the Official Secrets Act and subsequently convicted to a two-year prison term.

    The opposition accused Mohtar of committing an act of "corruption" that was equivalent to the charge he had brought against Anwar.

    'Introduce checks'

    Current A-G Abdul Gani Patail ( photo ) continues this long tradition of misuse and abuse of the A-G's powers. One example is his relentless and desperate efforts in keeping Anwar in jail even though, logically and legally, the latter is entitled to bail.

    In his argument for bail, Anwar's lead counsel Christopher Fernando pointed to the fact that the A-G's Chambers rarely object to bail applications.

    He left the judges with a pertinent point to consider: "It is amazing that in the case of Datuk Seri Anwar, the prosecution has gone to such an extent to object to a bail application. This is a question which the court must address when considering bail. The court must ask itself why the prosecution is opposing the application."

    It is very clear that in recent times and on many occasions the Attorneys-General have not used the powers vested in them in a responsible manner.

    Rais ( photo ) should know better than to send Tengku Adnan to the Dewan Rakyat with some tall tales to tell.

    The A-G must be accountable to Parliament and the public. Rais should pave the way to establish the necessary mechanisms to enhance such accountability.

    MARTIN JALLEH is a writer and researcher in a non-government organisation. Not affiliated to any political party, he believes that every Malaysian should care enough for his/her country by speaking up and standing up for the truth.