Tuesday, August 30, 2022

Why the double standard, Bersih?

Why the double standard, Bersih?

Azalina Othman Said speaking at the Umno meeting on Saturday.

From Azalina Othman Said

Since Thomas Fann, chairperson of Bersih, has made a public statement to express disappointment in me, I should also make a public statement to clarify a few things, just in case he has deduced his conclusions based on headlines regarding my speech (like most people do).

A former law practitioner since 1990, and a lawmaker since 2004, I would be the last to condone any intervention in the judiciary by the executive or legislature.

In my speech and my thoughts, I merely held dear to the maxim of “innocent until proven guilty” as a basic rule of natural justice. The legal burden of proof falls on the prosecution to establish their case beyond reasonable doubt, and I believe that denial of a change of legal representation is consequential, in delivering absolute justice.

This applies in all cases, including at the appellate courts. Did I ask for YB Pekan (Najib Razak) to be freed? The answer is a clear no.

I was asked to speak at last Saturday’s gathering as the legal advisor to Barisan Nasional and as the Member of Parliament for Pengerang. My short, circa 10 minutes, speech highlighted only a few things, without getting into too many technical details.

The crux of my speech is to raise the legal right of any citizen of Malaysia to appeal in the court of law. Every man and woman has the right to a defence and the right to adduce new evidence.

Let’s not forget, the prosecution represents the government of Malaysia, and therefore YB Pekan’s (Najib) appeal is technically objected to by the government. The attorney-general (AG) is the counsel to the government and therefore is the only person who can support any application.

Fann accused me of changing my stance on the AG appointment since YB Bera (Ismail Sabri Yaakob) became the ninth prime minister and compared it to my statement during the tenure of YB Pagoh (Muhyiddin Yassin) as the eighth prime minister.

When I said “orang dia” in my speech last Saturday, it had nothing to do with my dearly held stand on the separation of powers between the judiciary, executive and legislature, as well as the separation of the roles of AG and public prosecutor.

The AG, an executive position

Now back to the contentious issue of the AG. No offence to the current AG. He’s a decent man whom I respect.

The position of AG is established under Article 145 of the Federal Constitution, and he is a very powerful officer of the government. He is the chief legal advisor to the government and represents the government.

The AG is not only part of the executive, but he is also the highest-ranking public prosecutor in the country, who can exercise discretion to institute, conduct or discontinue any proceedings in most courts in Malaysia, save for shariah and native courts, and a court martial.

My stand on the separation of the AG is two pronged:a political or ministerial AG who sits in the Cabinet and accountable to Parliament, thus answerable to all lawmakers on every decision that he makes and advice he gives to the government, and
a professional public prosecutor as in the UK, where he is a senior career prosecutor, and not a political appointee, from the rank and file of the prosecution authority.

Why else would I be part of Bersih’s effort in the multi-party reform caucus? Doesn’t this mean that I have the support of my party Umno and that we are consistent on the reform agenda? Let’s not blemish the larger purpose of this caucus with a short speech made at a political gathering.

Perhaps Fann missed the point, that when I said “orang dia”, it means putting the political-ministerial AG in Parliament as I have repeatedly said in the past, especially during the imposition of an Emergency during the Covid-19 lockdown.

Wouldn’t having a political-ministerial AG appointed by the prime minister mean increased transparency and accountability of the executive?

By the way, Article 145 (of the Federal Constitution) does not prohibit the AG from being a law minister or vice versa, who sits in the Cabinet. This is the scheme of arrangement in countries spanning from Australia to the UK, and to Canada.

I would also like to remind Fann and readers here that our nation had two political-ministerial AGs in the past, in the form of Abdul Kadir Yusof and Hamzah Abu Samah, with Umno heritage no less. It didn’t cause any hysteria as it does today.

Wouldn’t having an accountable political-ministerial AG in Parliament expedite the reform agenda that we want? Many laws can be amended as soon as possible, to address issues on human rights, citizenship and electoral law reform, including constitutional amendments without being contingent on the Attorney-General’s Chambers, which at present is headed by an AG who is not a member of either House of Parliament.

Is Bersih jumping the gun, or does Bersih, in demanding the split in the role of AG and public prosecutor as part of the reform agenda, not realise what it demanded?

My question to Fann is: if the Reform Caucus succeeds in separating the AG post, and then the prime minister decides to appoint a political-ministerial AG in Parliament from the ruling party, would Bersih then object to this decision? Especially if the appointment carries Umno’s DNA?

Sadly, everyone thinks that a new AG appointee will be manipulated to drop criminal charges against party members or they be pardoned of all charges. This is not my intention, nor the intention of the Umno special meeting last Saturday. Watch the speeches again for verification, please.

Stand on AG, a dissonance?

Ok, let’s address the biggest elephant in the room. In my speech, did I ask the AG to be removed to free YB Pekan (Najib)? So that he does not need to face the remaining charges and trials?

Didn’t YB Port Dickson (Anwar Ibrahim) receive a pardon and release from prison within seven days of PH securing victory in GE14? Or when Tommy Thomas was appointed as AG by the seventh prime minister, wasn’t he “Orang PH”?

So my question to Fann is why didn’t Bersih say this then: “By afternoon, our fear of this grave threat to the rule of law was largely confirmed at the special meeting at Umno headquarters.”

Did Fann just move the goalpost? Pakatan Harapan’s prime minister changed the AG and so did Perikatan Nasional’s prime minister, but a prime minister from Umno-Barisan Nasional cannot change or replace the AG? A double standard, I reckon.

On to my next point. Does Bersih have a different legal maxim for Umno-BN politicians, one of “guilty until proven innocent”? Is it legally forbidden for a respondent in the Court of Appeal to ask the prosecutor for time or to support a motion to change counsels?

Shouldn’t counsel be allowed to discharge himself even though his solicitors have been terminated on the same day? This sets an unanticipated precedent for all Malaysian lawyers and clients.

Time and time again, people hurl accusations at the accused of abusing court processes, but what about the abuse of the right of the accused here? Shouldn’t Bersih uphold the principle of “Every latitude must be given to an accused person to defend his case or himself”?

Lastly, the special meeting last Saturday was an Umno solidarity rally among Umno members, in Umno’s Dewan Merdeka. At the highest level, Umno does not have a mob mentality. We didn’t take it to the streets and cause inconvenience to members of the public.

I really hope that this is a case of “both sides being so blinded by their fear and hate of each other that they couldn’t see they were all fighting for the same thing.”

Azalina Othman Said is Member of Parliament for Pengerang.

1 comment:

  1. Najib was never denied his right to change his legal representation.

    What the court insisted upon was the schedule established months in advance remains.

    When Anwar Ibrahim's Defence counsel, Karpal Singh , died in a road accident, he had no choice but to appoint a lead counsel, yet his application to defer the court case by just a few weeks was denied.