KUALA LUMPUR: Much has been said of the prosecution of Anwar Ibrahim, and there appears to be some obfuscation. Those who are misconstruing or distorting the Malaysian Bar’s press release of February 11, 2015, which was plainly and clearly only in respect of the prosecutorial process, should cease doing so.
Without recapping the issues raised therein, the Malaysian Bar wishes to address some issues that have arisen in the past week.
The Bar was raising issues and asking questions, said Bar Council President Christopher Leong, because it was pro-rule of law and pro-justice. “The Bar is neither pro-Opposition nor pro-Government.”
The prosecutor-by-fiat in the Anwar Ibrahim case has been reported to have been giving interviews, attending roadshows purportedly organised by a political party in Government, and with his name used in suggestions for debates. It was subsequently reported that the roadshows were not at the behest of or sanctioned by that political party.
Is such conduct befitting or compatible with the dignity of a prosecutor or the office of the Public Prosecutor?
Is it appropriate or proper for a prosecutor to replay the prosecution by way of roadshows or public debates?
Does a fiat given to a prosecutor to conduct a prosecution confer a licence to embark on a public tirade against a convicted and incarcerated person, or has the prosecutor-by-fiat been nevertheless authorised by the Public Prosecutor to undertake these activities?
“A former Attorney-General is reported to have said that such conduct is unprecedented,” said Leong.
The Bar Council was thanking the Attorney General for the statistics provided with regard to prosecutions undertaken between 2010 and 2014 pursuant to section 377B of the Penal Code. “It would be informative to have the statistics, if any, for such prosecutions under section 377B from the 1990s to 2009.”
“The media release dated February 12, 2015 by the Attorney General is an example of an account or response by the office of the Public Prosecutor in a clinical, measured and dispassionate manner,” concedes Leong.
“However, the law is only as good and fair as if it is consistently and equally applied and enforced.”
He delves into the issues.
Proceedings held in camera are proceedings that are not conducted in open court, and are without the presence of the public.
The court would usually make directions or set terms as to the ambit of the restriction in terms of any revelation or publication of the matters heard in camera.
Whether it is improper or a contempt of court for a prosecutor (or a prosecutor-by-fiat) or any party to reveal or publish matters and evidence heard in proceedings held in camera would depend on the directions made or terms set, if any, by the court, and whether those directions or terms have been breached.
The directions or terms made with regard to any particular proceedings held in camera could only be ascertained from the notes of court proceedings on the matter, if available, and any breach thereof would be a matter for the parties involved in the criminal trial or the court itself to take up.
It is public interest policy that there is no immunity for participants in offences
He referred to section 377B, read with section 377A, that criminalises both sodomy and oral sex (fellatio). “Section 377D has in the past been used to prosecute a participant or abettor in consensual sodomy. The offences apply to heterosexuals and homosexuals.”
“It would be instructive to see what the statistics are for prosecutions for consensual oral sex under section 377B, read with section 377A, and under section 377D.”
An analogy was drawn in the Attorney-General’s media release with a prosecution for a corruption offence, noted Leong, to explain why the complainant was not charged as a participant for abetment in the prosecution for consensual sodomy against Opposition Leader Anwar Ibrahim.
Is it a matter of policy, in the overall and long-term public interest, to grant immunity to those who are participants in an offence in order to prosecute other participants, instead of plea bargaining for an admission and lesser sentence, except where the participant is an agent provocateur acting with or emplaced by the authorities in a sting operation?
In line with the analogy drawn in the said media release, it is to be noted that section 11 of the Whistleblower Protection Act 2010 provides that a participant in an offence cannot enjoy protection under the said Act, including the removal of any immunity from criminal action, pointed out Leong.
“Although this Act came into force subsequent to the charge against Anwar and is largely concerned with corruption, it may be said that section 11 of the said Act is a statutory codification or reflection of the public interest policy with respect to there being no immunity for participants in offences.”
The prosecutorial discretion pursuant to Article 145(3) of the Federal Constitution is vested in the Attorney-General.
However, as the late Sultan Azlan Shah once said, there is no such thing as an unfettered discretion, as every discretion has its legal limits. “Thus, although the exercise of discretion may be vested in an office, the exercise of it is accountable and is not beyond scrutiny.”
There certainly should be no place for roadshows or debates.