To empower ACA, change the law

Should the Anti-Corruption Agency, or its successor, the Malaysian Commission Against Corruption, have independent powers to prosecute? ANIZA DAMIS speaks to former Court of Appeal judge Datuk Shaikh Daud Shaikh Mohd Ismail, a former senior federal counsel of the ACA Q: Why is it important for the Anti-Corruption Agency to have its own commission?
A: What's important is it should be independent. If not, there's no point in having the ACA. Let the police handle corruption cases.

There should be no interference from anybody as far as investigation and prosecution are concerned.

Q: The minister responsible for the ACA has said it will be given prosecutorial powers and that its prosecuting officers (who come from the Attorney-General's Chambers) need not refer to the A-G. However, the minister also said it was not necessary to amend any laws or create separate laws.
A: What exactly is this power that has been given to the ACA? The ACA per se doesn't have the power to prosecute. Under the Constitution, if the ACA were on its own, it cannot prosecute.

Article 145 of the Constitution is clear: the power to prosecute is with the A-G, who is also the public prosecutor.

When I was the senior federal counsel (SFC) with the ACA from 1973 to 1976, and had deputy public prosecutors (DPPs) under me, and although I was from the A-G's Chambers, we would prosecute cases without having to refer to anybody, be it the A-G or anybody.

Q: Didn't the A-G have to say "This is a strong case..."?
A: No. I never had to refer to the A-G on any case.

Q: Who was the A-G then?
A: The late Tan Sri Kadir Yusof. At that time, the A-G was a political appointment. Even if we had to refer any case, we would refer it to the solicitor-general, who has been given the powers of the A-G.

Q: And the solicitor-general's post was not political?
A: It was a government post. And at that time, it was held by Tan Sri (now Tun) Salleh Abas.

At the time, there was no directive to the effect that we had to refer any case, be it low profile or high profile, to the A-G. We just conducted them ourselves, because, as a senior federal counsel in the ACA, I was representing the A-G. So, what's the point of referring the matter to the A-G? Might as well not have the post. Let every case go to the A-G.

Q: How did you decide whether a case was strong enough to go to court?
A: I studied the investigation papers put up by the ACA officers to see whether there was enough evidence to proceed with prosecution.

I'd have a discussion with the investigating officer, and whatever was lacking, I'd tell him what was needed, such as getting further statements from witnesses or from new witnesses.

As the SFC, I was experienced enough to decide on a case. Also, I had the powers of a DPP. It's just like a state DPP who doesn't send every case to the A-G. He decides on the case and orders the prosecution.

The best example (of the autonomy of the SFC) I can give is (former Selangor menteri besar) Datuk Harun Idris' case, a high-profile case.

We never referred the matter to the A-G. But, it being a high-profile case, I thought it was best to brief the S-G before issuing the consent to prosecute. But, with other cases, it was our decision.

There was one case involving the head of commercial crime investigation department in Bukit Aman (federal police HQ). I decided, on the evidence before me and on the investigation made by the ACA, that there was a case. We got a conviction.

Q: There were no problems from the A-G? He understood that that was the way it was?
A: He did. After all, he put me there as his representative.

Q: Does it make a difference if the A-G now is not a political appointee?
A: I don't see the difference. The SFC has the power to prosecute just like the A-G has.

Section 376 of the Criminal Procedure Code gives the public prosecutor (who is also the A-G) powers to appoint DPPs who then exercise all the rights and powers vested in the public prosecutor.

So, when a person is appointed a DPP, he can act as if he's the public prosecutor. He can order prosecution, he can even retract cases.

But sometimes, when the case is complicated, we may want to consult with senior officers in the A-G's Chambers. We will consult the S-G or the head of the criminal division (now head of prosecutions).

Q: When did the directive for all cases to be referred to the A-G come?
A: I don't know. After I left in 1976, I was told there was such a directive. But I've never seen that directive.

If this is in place, it's superfluous to have an SFC in the ACA, isn't it? The investigating officer might as well refer the case straight to the A-G's Chambers.

Q: What if the head of the criminal division disagrees?
A: It doesn't make any difference. If I'm of the view there is a case, then I will proceed.

It is for him, being a senior officer, to direct me otherwise. If he directs me otherwise, I'll have no alternative but to follow, because "I'm your obedient servant" (a civil service mantra).

Q: If you had to go and see the S-G or even the A-G himself, and they disagree?
A: If they don't want me to prosecute somebody, I want it in writing. This is so that, five years down the line, there won't be any allegations that I didn't prosecute for whatever reason. But I had never been directed not to.

Q: What do you think of this new prosecutorial power?
A: The situation will be the same as when I was there. Unless, of course, the A-G wants to interfere.

I don't know what the rationale is for giving these powers this way. If they want to give the prosecutorial powers to the ACA, then Article 145 of the Constitution has to be amended.

Article 145 now only gives the power to the A-G, as public prosecutor, to prosecute and delegate that power.

Q: If the ACA wants to be seen to be independent, would it be necessary to amend the laws, so that it specifically says "ACA has powers to prosecute"?
A: In the past, people were not so concerned about that, although there was nothing in writing to specifically say that. They could see from the way cases were conducted, that the A-G's Chambers' officers in the ACA worked independently.

Nobody complained they had to take directions from the A-G's Chambers. But now, people are saying it.

Q: Under the proposed system, who would have the final say, the SFC or the director-general of the ACA?
A: It should be the director-general, with the SFC giving his opinion on the law. This is similar to the legal adviser in the states. The legal adviser gives legal opinion to the menteri besar.

Q: So, who is the SFC answerable to, the A-G or the ACA?
A: The ACA. The SFC is the representative of the A-G, so it is as if the A-G is recommending prosecution to the ACA.

Q: Since people have become more cynical in their perception of the ACA, is it necessary to change the laws, or is it just necessary to change the perception?
A: If this perception persists, then I think it's necessary to change the law.

With the ACA's prosecutorial powers spelt out in the Constitution, people will accept that it is independent.

Q: Would there be any risks in vesting the ACA with prosecutorial powers?
A: I don't see where the risk is. If the A-G can exercise that power, why can't somebody else?

But, in the past, the directors-general of the ACA were all legal officers.

They were, in fact, all DPPs. They had the power to prosecute, but they never exercised it.

The late Tan Sri Harun Hashim was a DPP in the A-G's Chambers. But he never exercised the power of the DPP; he left it to the SFC.

It was the same with the late Ibrahim Salleh, who was from the A-G's Chambers: He never interfered; he left it to the SFC to decide on prosecution.

But after Datuk Abdullah Ngah (1981), who was also from the A-G's Chambers, I believe civil servants were appointed as directors-general of ACA. They did not have the power of the DPP, so they couldn't prosecute. They had to rely on the SFC.

Q: Does that mean that if we want the ACA to be in charge of its own prosecution, we would need to assign a legally-trained person to be the ACA director-general?
A: Yes.

Q: Do you think the ACA should explain if it decides not to prosecute?
A: Just as the A-G need not explain, I don't see why the ACA should explain either.

If they are given the power to prosecute, then they should also be given the power not to prosecute.

In some cases, people can make allegations easily. But, after investigating, you find there is no basis to the allegation, should you prosecute the person?

Q: Should we follow Hong Kong's practice, where the Independent Commission Against Corruption's decision not to prosecute is scrutinised by a special body.
A: Perhaps we can have it. But, it should not be in every case, because then they'll be bogged down. Only in specific cases should the ACA be referred to this committee.

Q: Do you think we're ready to have a separate prosecutorial body?
A: I think we need it very badly.

The ACA should be able to prosecute without fear or favour, and it should show to the public it is independent.

Q: Do you think the proposed Malaysian Commission Against Corruption (MCAC) should come under government supervision?
A: I don't think so. Since the ACA comes under the Prime Minister's Department, all these allegations are being thrown at it.

It should not come under any ministry. It should be separate, and Parliament should facilitate this arrangement.

And, the ACA should recruit staff and legal officers by itself, not through the Public Service Commission or the A-G's Chambers. If it takes a legal officer from the A-G's Chambers, it should not be on secondment.

There should be provisions for promotion within the division. Then, more people, like legal officers and forensic accountants, would be willing to join the ACA.

Q: All this sounds shockingly free: cutting a department loose and letting it govern itself.
A: If the government is mature enough, they can accept that.

Times are changing. We need this sort of transparency and independence.

Q: If we have the ACA that is independent, what checks and balances would we need?
A: It should be answerable to Parliament. There can be a committee in Parliament to supervise the ACA. If you have any problems with the ACA, you can write to the committee to investigate.

And opposition members of parliament should be included in this committee.

Q: Is there any system by which we can make sure that the powers of the ACA are not abused?
A: The police can investigate any abuse.

When I used to give lectures at the police college, the first question they asked was: "What if an ACA officer commits an offence? Who do you complain to?"

I said: "To you. People can lodge a report; you can investigate the ACA officer."

During my time there, one state ACA head was charged by the ACA for corruption. While the case is being investigated, the accused should be given leave of absence, so that the investigation can be done without any perception of interference.

Q: What would happen if the ACA were to be given prosecutorial powers but had to come under ministerial supervision?
A: If the ACA comes under ministerial supervision, then politics will come into it.

To reduce corruption, no political influence should be allowed.

ARTICLE 145 OF THE FEDERAL CONSTITUTION

145 (3) 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 cour t-mar tial.

SECTION 376 OF THE CRIMINAL PROCEDURE CODE

(1) The Attorney General shall be the Public Prosecutor and shall have the control and direction of all criminal prosecutions and proceedings under this Code.

(3) The Public Prosecutor may appoint fit and proper persons to be Deputy Public Prosecutors who shall be under the general control and direction of the Public Prosecutor and may exercise all or any of the rights and powers vested in or exercisable by the Public Prosecutor by or under this Code or any other written law except any rights or powers expressed to be exercisable by the Public Prosecutor personally and he may designate any of such Deputy Public Prosecutors as Senior Deputy Public Prosecutor s.