OPINION

The prosecution's decision to withdraw the remaining five charges against former Deputy Prime Minister Anwar Ibrahim does not seem to discourage people from speculating about it.

Deputy Prime Minister Abdullah Ahmad Badawi was right in saying that there was nothing unusual about it: Such a withdrawal has happened before.

One may add here that, as a minister, Rais Yatim had correctly pointed out that the law allows the withdrawal. But the point is, this is not an ordinary case. It involves a former senior member of the party and government, hence the people have reasons to talk about it.

They would be wondering: If the government had a strong case (as Prime Minister Mahathir Mohamad himself had said many times that more charges would be pressed against Anwar), why did they decide to abandon it?

The decision would also make people ask: If the government did not have the evidence, why did they go public before being really sure of it? These questions are bound to be asked as Anwar is no ordinary person.

At one time, he was even said to be the anointed successor to Mahathir. On May 15, Anwar was reported to have said that he may sue the government for defamation.

However, it is to be noted that Anwar lost in his suit against Mahathir nearly two years ago when the court ruled that the latter was entitled to a qualified privilege defence.

Casting doubts

On May 14, DAP chairperson Lim Kit Siang alleged that the statements by Ahmad Badawi and Rais Yatim were not conducive for national reconciliation. But more serious than that, the decision would invariably cause doubts over the credibility and integrity of the system.

The Attorney-General (AG) Chambers, the police and the judiciary are all involved in it. Despite the fact that the government kept insisting they were independent, the decisions kept on going the government's way - even when the book does not say so.

The decision to drop the charges against Anwar is not favourable in restoring the credibility of the system. The proceedings at the Sungai Buloh prison on May 12 lasted less than five minutes.

Anwar, like any other citizen, has the right to clear his name, particularly when Mahathir keeps claiming that he sacked the former on moral grounds.

And it is understandable why he rather 'face them in court' although Anwar's instant reaction to the dropping of charges was that the decision was "a pleasant surprise".

Back to the Prime Minister, the five charges that were dropped were very much related to the premier's allegations of Anwar's moral incompetency. Are we witnessing the weakening of the prime minister's position?

Recently, a commentator wrote that the more the government brings its might down on Anwar, the more it shoots itself in the foot.

Given that the papers are owned by groups close to the ruling party, it is not difficult to conclude the reasons as to why these papers, unlike the Chinese language press, had done that.

Final say

While the position in the constitution is clear - that it is at the discretion of the AG to institute, discontinue and withdraw legal proceedings - that is not quite important because whatever the wording of the law, the practice is pretty unambiguous; that decision belongs to the government of the day.

And this is not something new or entirely exclusive to Malaysia. Indeed, this is the position throughout the Commonwealth. One may refer to what former Lord President Mohamed Suffian Hashim had to say in relation to the prosecution of former Selangor Chief Minister Harun Idris during the time of our second premier Abdul Razak Hussein in 1975.

Be that as it may, the decision is not something done according to whims and fancies. A former AG, Abu Talib Othman, had said during Anwar's first trial, that the policy he laid down was that there must exist at least ninety percent credible evidence.

However, one must not forget the DP Vijandran (MIC) controversy which came about during Abu Talib's tenure, where evidence relating to the case was ordered to be destroyed. This illustrated the government's final say on matters pertaining to prosecution.

Despite that decision to prosecute or otherwise, is not quite something which is 'absolute', as said by former Lord President Abdul Hamid Omar (who assumed office after Mohd Salleh Abas was sacked).

For one thing, the decision involves many agencies - apart from the AG chambers where the final say lies - including the police who provide the investigation to collect evidence etc.

In other words, although the law gives the discretion to the AG chambers, the process is a long and elaborate one. Needless to say there are common and standard practices which supplant the law.

AG's silence

Given these considerations, the decision to drop the charges naturally begets lots of questions. People would not stop asking questions simply by being told that the decision is within the law and not unprecedented.

Of interest is the fact that it was Rais Yatim, widely considered as the de facto law minister, who had given rise to another question about the AG Chambers.

Although Rais - the only PhD in law holder in the government - is more than qualified to do that, it would have been much proper if the AG, Ainum Mohd. Saaid herself explained to the public about the decision.

This is not the first time she has chosen not to say anything. When the case of a murder suspect given bail hit the headlines, she remained silent, leaving the stage for Rais to make statements.

Before she assumed office, her predecessor, Mohtar Abdullah, although not a politician, normally clarified, at times through press releases, about issues of public importance.

Albeit the decision is the government's decision (which provides the basis for Rais to make a statement), it would have been much proper if it was the Attorney-General herself who cleared the air.

Given her position as the chief legal officer she is in the best position to give a clear statement on the issue.

Rais was reported to have said: "The AG may have considered the severity of Anwar's 15-year sentence" and that leaves a lot to be desired.

Elected politicians

It is quite apparent that since Rais was appointed a minister, he was practically the chief law officer of the government and that took place almost immediately, even when Mohtar was still in office.

To a certain extent, the arrival of Rais could be said to have relegated the holder of the Solicitor-General's (SG) office who is basically the second senior law officer.

In the past the SG used to be the one in charge of the chambers when the holder of the AG's office was a politician who sits in the cabinet.

Indeed, speculation was rife before Rais was appointed as a cabinet minister that there would be a return to the old practice of having a minister as the holder of the office.

The incident is yet another reason why it is more desirable to have a political AG. In the United Kingdom both the AG and SG are elected politicians.

Of course this would not change the law but the point is, having elected politicians - who can be made answerable in Parliament and to the electorate - as holders of key posts.

The decision to drop the charges indirectly told us that what was said by Prime Minister Mahathir Mohamad was not quite correct.

On several occasions he told the public, including the press and Malaysian students abroad, that the government was in no position to do anything about Anwar's case. However, strangely enough, he told them that more charges are to be pressed against the latter.

It may be said that from the constitutional and legal point of view, the judiciary is not entirely independent in a criminal trial.

As has been said above, 145(3) of the Federal Constitution has clearly indicated, the decision to prosecute or otherwise is the decision of the AG which is basically the government's decision.

Government's decision

And if the government decides to prosecute, it is again the authority who decides which law is to be used. This explains why two persons who were both prosecuted for possessing firearms found themselves dealt with two different laws: One prosecuted under Emergency Regulation which carries a mandatory death sentence while the other under the Firearms Act which carries lesser penalties.

Anwar's case and trials have provided us with the opportunity to look at the law in a more comprehensive manner; not only its technicalities but also its intricacies which involve out of court factors, including politics.

This is one example where law academics could work together with experts from other fields, especially history.

Anwar's case needs to be analysed, not just from the legal standpoint - as they are found in the law reports, but also from newspaper reports as well as personal accounts of those involved in it from the very beginning.

DR ABDUL AZIZ BARI is an associate professor of law at the International Islamic University specialising in public law; particularly constitutional law and comparative constitutional law. He has also taught Malaysian Legal System, introduction to law, administrative law and jurisprudence.