The Attorney-General should not lead the prosecution against Lim Guan Eng
11 July 2016
On 30 June 2016, Penang Chief Minister Lim Guan Eng was charged under section 23 of the MACC Act and section 165 of the Penal Code over the alleged corrupt purchase of a house. Attorney-General Mohamed Apandi Ali led the prosecution team against Lim Guan Eng when in a normal course of event, professional deputy public prosecutors from the Attorney-General’s Chambers civil service would be prosecuting.
While the Attorney-General may be legally entitled to do so, it must be recalled that he holds office at the pleasure of the Yang Di-Pertuan Agong. Without security of tenure of a civil servant, the position of the Attorney-General is essentially one of political appointment and he can be removed on the whim of the Prime Minister as was the case of his predecessor, Abdul Gani Patail.
While it is not totally unprecedented for the Attorney-General to conduct criminal trials, under Article 145(2) of the Federal Constitution, he is also the Legal Adviser to the Federal Government and questions may arise on his impartiality if he was to prosecute someone like Lim Guan Eng in a case widely seen to be yet another politically motivated prosecution.
The leader of the opposition Anwar Ibrahim is currently serving a five year jail sentence for a charge widely condemned around the world while dozens of opposition politicians and elected representatives are also facing charges under the Sedition Act, Peaceful Assembly Act and Penal Code.
It cannot be over emphasised that the Attorney-General when acting as Public Prosecutor represents the State, the community at large and the interest of justice, and not the government of the day. While the Public Prosecutor is not ultimately responsible for determining the guilt or innocence of an accused person, he or she must ensure that an accused receives a fair trial.
The Attorney-General must be aware that due to his conflicting dual roles as Legal Adviser and Public Prosecutor, there have been persistent calls to make his position more accountable to Parliament and to transfer the prosecutorial powers to a truly independent and professional Office of the Director of Public Prosecutions in order to facilitate greater transparency and accountability.
The Attorney-General acting as lead prosecutor in this case can unfortunately only reinforce further public perception that the authorities will go to extraordinary lengths to secure the conviction of the government’s political adversaries as was the case in Shafee Abdullah’s appointment as ad hoc Deputy Public Prosecutor during Anwar Ibrahim’s criminal appeals.
Further, prior to becoming Attorney-General, Apandi Ali held his last position as a Federal Court judge. As a former judge of the apex court, his appearance as prosecutor in this case could adversely affect the proceedings as the presiding High Court judge may feel compelled to defer to him as he has greater seniority and experience while serving in the judiciary. There may also be instances where Apandi Ali would rely upon decisions made by him while on the bench, and submit that the court is bound to abide by those decisions, thus causing further embarrassment.
More importantly, the suitability of Apandi Ali as Attorney-General has been challenged repeatedly as he was appointed under extremely controversial circumstances after the unceremonious removal of former Attorney-General Abdul Gani Patail at the height of the 1MDB corruption scandal. He also stopped all further investigations on 1MDB and cleared the Prime Minister of all wrongdoings despite overwhelming evidence to the contrary including unexplained billions in the Prime Minister’s bank accounts. Further, Apandi Ali had once stood as an Umno candidate for the 1990 general elections which on its own should make him unsuitable to prosecute Lim Guan Eng.
The Attorney-General’s Chambers have a wealth of resources and hundreds of well qualified Deputy Public Prosecutors available to conduct the trial and there is no good reason why Apandi Ali must lead the prosecution. His leading the prosecution against Lim Guan Eng can only tarnish further the reputation of the Attorney-General’s Chambers.
Like Caesar’s wife, Apandi Ali acting as lead prosecutor must be above any trace of suspicion. In light of all the controversies, we call upon the Attorney-General to recuse himself as lead prosecutor for Lim Guan Eng’s trial and instead to work towards restoring public confidence of the rightful role of the Public Prosecutor, one that is dignified, just and free from political interference.
Lawyers for Liberty