If Malaysia is to achieve greatness, we must dare to dream big dreams. However, we must plant our feet firmly on the ground and realise what are the fundamentals which we must achieve if we are to realise our dreams and vision.
For a start, Malaysians from the top government leadership to the ordinary rakyat must realise that public confidence in the rule of law and an all-out war against corruption are two important prerequisites if Malaysia is to be respected internationally as a civil society which can be a model for other nations.
In the World Competitiveness Report comparing and ranking the competiveness of 46 nations, on the criteria on "Confidence in the fair administration of justice in the society", Malaysia was ranked No. 22 out of 46 nations while on the criteria on "Improper practices such as corruption and bribery in the public sphere", Malaysia was ranked No. 28 out of 46 countries.
Malaysia have no reason to be proud of such lowly rankings and if we want to be respected internationally as a model civil society, we must aim to be ranked among the top ten nations in the world both in terms of national and international confidence in the fair administration of justice as well as for integrity and non-corruptibility in the public service.
Public confidence in the fair administration of justice or the rule of law is dependent on three factors: the independence of the judiciary, the integrity of the office of Attorney-General andn the independence of the Bar.
Undoubtedly, one matter of grave concern in Malaysia today which has contributed to the lowering of public confidence in the fair administration of justice is the abuse of the discretionary powers of prosecution of the Attorney-General - or selective prosecution by the Attorney-General against the Opposition andthe NGOs.
I had made a very serious charge in Parliament against the Attorney-General, Tan Sri Mohtar Abdullah for bias and misuse of his prosecutorial discretionary powers as entrusted to him under Article 145(3) of the Malaysian Constitution but up to now Mohtar Abdullah has not been able to present any credible self-defence to rebut my charge.
I had cited in Parliament several of the Attorney-General�s highly controversial exercise of his discretionary powers of prosecution which amount to abuse of his powers, such as the withdrawal of corruption charges against Jeffrey Kitingan after he defected from the Opposition to Barisan Nasional; the withdrawal of the Police Act charge of unlawful assembly against Yong Teck Lee which, on conviction, would have entailed his automatic disqualification as Sabah State Assemblyman and denial of his opportunity to become Sabah Chief Minister to a charge under the Penal Code; the failure to charge former Malacca Chief Minister, Tan Sri Rahim Tamby Cik although 14 others were charged on the uncorroborated evidence of the underaged girl for statutory rape; the provision of a very light alternative charge under the Penal Code for the four UMNO Youth leaders who rioted and broke up the APCET II Conference in Kuala Lumpur last November, as the original charge under the Police Act would have disqualified one UMNO Assemblyman in Perak and ended the political careers of three UMNO Youth leaders.
The defence of the Constitution to uphold the integrity of the office of the Attorney-General to ensure that there is no misuse of the discretionary powers under Article 145(3) to "initiate, conduct or discontinue any proceedings for an offence" leading to selective prosecution against the Opposition and the NGOs and the campaign to hold the Attorney-General to public accountability for the exercise of his discretionary powers of prosecution is a matter of great public interest.
There are those who believe that the Attorney-General�s discretionary powers of prosecution cannot be questioned or challenged by anyone. This is a great mistake for any citizen has the right to question the Attorney-General for any abuse of the disretionary powers of his office.
Today in the Sun (29th June 1997), Dr.Abdul Aziz Bari, an assistant professor of law at the International Islamic University Malaysia in an article under the heading "AG and his absolute discretion" referred to the speech by the former Lord President Tun Abdul Hamid Omar on June 13, when the latter referred to the Attorney-General�s "absolute discretion to institute, conduct or discontinue any proceedings" and pointed out that Article 145(3) of the Constitution on the Attorney-General�s discretionary powers had not expressedly used the word "absolute discretion".
Remarking that what the former Lord President meant by "absolute discretion" was in the sense that the court would not examine the factors taken into account by the Attorney-General when deciding whether to "institute, conduct or discontinue any proceedings", Abdul Aziz wrote:
"It must be emphasised that the reluctance of the court is essentially concerned with judicial control: given the wording of the provisions as well as the role of the AG it is not possible for it to allow judicial review.
"One could say given the court�s attitude, the answer lies in the political field. This means the press, the MPs - backbenchers and opposition, as well as the NGOs have every right to scrutinise the way the AG exercises the discretion."
It is not only "the press, the MPs - backbenchers and opposition, as well as the NGOs" who have the right to scrutinise the way the Attorney-General exercises his discretionary powers of prosecution, every Malaysian citizen has such a constitutional right as well!
At the opening of a seminar for officers from the Attorney-General�s Chambers two weeks ago, Mohtar Abdullah likened the role of an Attorney-General to that of a chef, giving an analogy that it was like preparing chicken soup for a customer (the court).
He said: "We must have enough ingredients and cook it right so that it fulfil�s the customer�s taste."
Mohtar did not explain why in the Jeffrey Kitingan case for instance, the "ingredients" were enough to charge him for corruption but after Jeffrey had defected to the Barisan Nasional, the same "ingredients" were deemed inadequate and the charges had to be withdrawn!
Mohtar had also said that the legal system provided for sufficient check and balance and there was no monopoly of powers by agencies in enforcing the laws.
One cardinal principle of such a system of check-and-balance to ensure that there is no monopoly of powers by any single agency or office is the principle of accountability, and this is where the Attorney-General must publicly defend himself with regard to the specific charges which had been made against him for abuse of power in selective prosecution against the Opposition and the NGOs if the delicate system of check-and-balance is not to break down.
The Attorney-General�s discretionary powers of prosecution cannot be questioned in a court of law, but he must submit to questioning in the court of public opinion. Up to now, Mohtar Abdullah has refused to �enter an appearance� in the court of public opinion, and it is time he submit himself to the court of public opinion, answer the serious charges that he had abused his powers of prosecution through selective prosecution of the Opposition and the NGOs and await the judgement from the court of public opinion!
(29/6/97)