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Is Samy Vellu and Cabinet
undermining the sole discretionary powers on prosecution and the
constitutional independence of the Attorney-General in calling for criminal
proceedings to be instituted over the publication of the LDP concession
(Parliament, Monday) : Works Minister, Datuk Seri S. Samy Vellu and the Cabinet have precipitated a grave constitutional issue when at the Cabinet meeting last Wednesday, the Attorney-General Tan Sri Gani Patail was asked by the Executive to take “appropriate action” against the recent publication of the Litrak concession on the Lebuhraya Damansara-Puchong on the ground that it was a “classified secret” and had been “stolen” and “exhibited without authority”.
This is what Samy Vellu said after last Wednesday’s Cabinet meeting:
"I have also suggested that the Cabinet take appropriate action against the person (or persons) who had stolen and exhibited an agreement. The agreement is solely between the government and the company and it is a secret document.
"It is classified secret ... a restricted document of the government. It has been stolen by some people and we have suggested we are going to ask the Attorney-General's office to take appropriate action against those who stole the document and exhibited it without the authority, and they have to pay for it."
The manner this issue was raised in the Cabinet constituted a completely unacceptable Executive interference and encroachment of the constitutional independence of the Attorney-General on all questions of prosecution or otherwise, reflecting a past habit of mind that the Attorney-General must do the bidding of the Executive on who and what to prosecute and not to prosecute.
Article 145 (3) spelt out very clearly the powers of the Attorney-General with regard to prosecution: “The Attorney-General shall have power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for an offence, other than proceedings before a Syariah Court, a native court or a court martial.”
The sole discretionary powers of the Attorney-General to “institute, conduct or discontinue” any prosecution is a fundamental constitutional principle giving the Attorney-General absolute independence from the Executive and requiring him to act independently of partisan concerns when supervising prosecutorial decisions.
The Prime Minister, Datuk Seri Abdullah Ahmad Badawi must reaffirm his commitment to uphold the doctrine of separation of powers and full acceptance and respect of the quasi-judicial powers of the Attorney-General on questions of prosecution, and that neither he nor his Cabinet Ministers can issue orders to the Attorney-General – and that the Attorney-General must absolutely decline to receive any such orders – that he should or should not prosecute in particular cases.
Opposition Leader, MP for Ipoh Timur & DAP Central Policy and Strategic
Planning Commission Chairman
Parliamentary Opposition Leader, MP for Ipoh Timur & DAP Central Policy and Strategic Planning Commission Chairman