EARLY in February 2021, the Judicial and Legal Service Officers’ Association (Jalsoa) objected strongly to former attorney-general Tommy Thomas’s comments about legal officers in the Attorney-General’s Chambers (AGC) in his memoir, My Story: Justice in The Wilderness, saying the remarks insulted its members.

In a statement, the Jalsoa executive committee said: “The challenges, trials and pressures in the duties of a legal officer have implications not for any individual and client, but could affect the interests of the country and public interest in upholding the rule of law.

“Legal officers – whether they are in the AGC or in the courts – always carry out the responsibilities entrusted to them in accordance with the provisions of the law, regardless of who is the attorney-general or the ruling government.

“The policy of confidentiality, integrity and professionalism emphasised in the civil service always underpins every action and conduct of legal officers.

“They are to represent the government in legal disputes in court, including proceedings and international negotiations with the national interest at heart.

“The former AG should safeguard the honour and good name of the position he once held, as well as the legal services institution in the civil service as provided in the federal constitution.”

The power to prosecute lies in the AG and he is the public prosecutor (section 376 of Criminal Procedure Code).

The AG also has the power to appoint other persons to be deputy public prosecutors (section 376(3)), who can carry out the prosecution on his or her behalf.

Currently, there is not a single published prosecution guideline.

The decision to prosecute rests solely on the AG or a deputy’s discretion. In this context, after a police investigation, the AG or deputy will decide whether there is enough evidence to charge the suspect.

If so, it is quite straightforward and leads to the case going to court. Even if a defendant is wrongly charged, he or she is entitled to a fair trial that is publicly accountable and largely transparent.

However, he or she can exercise their discretion not to charge the accused, even if there is adequate evidence to do so.

This is due to the fact there is no clear prosecution guideline to direct a prosecutor’s action. Therefore, a prosecutor can act as a preliminary judge to acquit accordingly.

Not all crimes are worth prosecuting.

Nonetheless, this discretion can also be abused to overlook high profile offences.

This is best reflected in a case in 2014 where the AG had openly claimed that the AGC chose not to charge Ibrahim Ali with sedition, because the AGC decided he lacked ‘intent’, unlike the other 20 people who were in fact charged.

The AG did not explain how he reached such a conclusion, neither did he elaborate further on what constituted ‘intent’.

It should be noted that the AG’s decision is arbitrary and not subject to review.

Of late, there were a lot of accusations being raised publicly that corruption charges against certain political figures were politically motivated and initiated by their foes.

In the first instance, charges are only proffered against an accused person when the AG or deputy is satisfied with the evidence.

How can these be politically motivated charges? The evidence is there indicating a corrupt act committed by the accused.

In proving allegations of fraud committed by certain political figures – who otherwise claim it was political persecution – the AGC or deputy carries the burden of proof beyond reasonable doubt.

As such cogent evidence must be provided and mere suspicion cannot be accepted.

If the charges are really politically motivated, the first thing these political figures should be seeking is whether their existing defence team can defend them properly.

A lawyer’s true duty is to provide his or her clients with a vigorous defence. A lawyer who takes his or her responsibility seriously will mount a thorough defence, more so if charges are proffered due to political pressure.

The allegations of politically motivated charges needs to be addressed urgently. If not, it will seriously tarnish the integrity and credibility of the AG and the AGC.

It will create an impression that the AGC fails to carry out its duties and does not adhere to the federal constitution it is sworn to defend. – September 1, 2022.

* FLK reads The Malaysian Insight.

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.