Sunday November 22, 2009

No licence to try offenders

By SHAILA KOSHY

A recent High Court ruling that only the Attorney-General and not the local council can prosecute offenders has the potential to create a constitutional storm.

WHEN local councils issue summonses for offences like illegal parking and traffic obstruction under the Local Government Act 1976 (LGA), are they not doing so on behalf of the Attorney-General, in spirit if not in law?

That is the bone of contention which underscores the case of mini-market owner Subramaniam Gopal, 50, who challenged the authority of the Temerloh Municipal Council for taking him to court for operating without a valid business licence.

In the High Court ruling, Temerloh High Court Judicial Commissioner Akhtar Tahir overturned a magistrate court’s ruling and said that if anyone was going to prosecute Subramaniam, it should be the Attorney- General.

Can the A-G’s prosecutorial power not be delegated?

International Islamic University’s Law Prof Dr Abdul Aziz Bari says he cannot see how it can be delegated. But the fact remains that most cases - as a matter of routine - are dealt with by Deputy Public Prosecutors without the knowledge of the A-G, as it is simply impossible for the A-G to do all that.

“But as a matter of law, the power remains with the A-G and he could at any time have a look at the case,” he says, adding that high profile cases are handled by the A-G personally.

Lawyer Malik Imtiaz Sarwar says a distinction has to be drawn between the instituting of prosecutions and the conduct of prosecutions.

If the power to institute is delegated, he says, it would undermine the safeguards against arbitrary prosecutions; unlike the conduct of prosecutions which can be delegated and is provided for under the Criminal Procedure Code.

Lawyer Derek Fernandez, who is a councillor with the Petaling Jaya City Council, however, reveals that the Public Prosecutor (PP) authorises the council officer in PJ to carry out the prosecution on behalf of the PP in the PP’s name.

He argues that it is necessary as the PP’s office would otherwise be overburdened with prosecuting thousands of statutory offences.

But is there a danger that, unlike the PP who is supposed to act in the public interest, the local council may have political reasons for instituting a prosecution – as in the case of trader Subramaniam who refuses to move to a council-built market as his business would be affected?

Imtiaz says “yes”, adding that compelling traders to trade in a particular place by legal process was questionable.

But Fernandez suggests there are some who feel the PP is more political. Anyway, he says, the PP’s consent is necessary and a person can write to the PP if he or she feels they are being wrongly singled out or are victims of political interests.

Or if a person feels hard done by, he could always go to the Malaysian Anti-Corruption Commission (MACC), he says.

Hence, the legal issue of who should have the power to prosecute is a difficult one to sort out.

The case against Subramaniam also highlights the fact that the enforcement authority or the local councils are ignorant of the Federal Constitution. The Temerloh Municipal Council did not reckon with the likes of Subramaniam operating a mini-market on Jalan Besar Lanchang in Pahang who would challenge their might - and win his case.

They also did not expect the judiciary to uphold Article 145(3) of the Federal Constitution which vests the power to prosecute in the Attorney-General instead of Section 120 of the LGA, which vests that same power in the local council for transgressions of local laws, by-laws, regulations.

Local government is so pervasive, it permeates so many aspects of a resident’s life.

Local government is also big business because you have to pay for licences to do certain things, ostensibly so they can monitor you and revoke your licence if your actions or business inconvenience the public (haphazard/ illegal parking) or puts it at risk (open burning) or in danger (dumping of toxic effluence into public drains).

However, on Sept 11, Judge Akhtar held that Section 120 of the LGA is unconstitutional.

So what does this decision mean for those who were previously prosecuted and convicted under Section 120 say, for parking offences or not having a dog licence?

According to Fernandez, the decision would not apply retrospectively; if the prosecution has been completed and the penalty or sentence ordered and all appeals exhausted and the decision is final then there will be no effect.

If not, however, the affected party can apply to set aside the prosecution on the strength of the decision of the case,” says Fernandez.

Dr Aziz suggests that maybe those who had been successfully convicted could apply to the court for a declaration of their position.

“Let the court clarify the law on this. But I personally feel it is unconstitutional and they have a right to compensation or anything that could rectify the oversight.”

Imtiaz says it would depend on the Sept 11 judgment because in re Repco (1997), the court gave a stipulated date from which it would take effect. “I am not sure whether Akhtar J followed suit.”

If he did not, Imtiaz says, there may be grounds for a review.

Can Parliament amend Section 120 and make it retrospective so there won’t be suits challenging such prosecutions?

Yes, they can, says Fernandez, but adds it is not normally done as it is considered uncivilised and draconian for Government to pass retrospective laws.

Instead, he says, the court can issue a discharge not amounting to an acquittal (as in the case of Subramaniam) and the local authority can re-file or summon in the Public Prosecutor’s name and with his consent because there is no time bar to criminal/ quasi-criminal or statutory offences.

Imtiaz agrees with Fernandez, and he adds that a retrospective amendment would be a violation of due process guaranteed under the Constitution.

“It would be interesting to see what Akhtar J considered Section 120 to be,” Imtiaz says, adding that it could be argued that Section 120 empowered a local government body to bring private prosecutions for offences under the LGA and its regulations/by-laws.

If there were one decision crying out for written grounds, this would be it. While local government by-laws and regulations vary from state to state, the provision in the LGA which he held as unconstitutional is a federal law.

Judge Akhtar would have to write his grounds if there was an appeal against his decision - a valid appeal that is.

In this case, DPP Mohd Najmi Daud, who appeared in the High Court for the application for revision, did not appeal. However, on Oct 7, way beyond the 14-day period, the council’s legal officer filed a notice of appeal.

Maybe Chief Justice Zaki Tun Azmi or Chief Judge of Malaya Tan Sri Arifin Zakaria could instruct Judge Akhtar to do so in the public interest.

Even the Executive seems unclear about what it wants. While it has made amendments to several pieces of legislation in Parliament, stating it was doing so to make it compliant with the Constitution, it has left others like the LGA alone or enacted new laws like the MACC Act, doing just the opposite.

Dr Aziz says the provision in the MACC Act which allows the delegation of power from the A-G to the MACC administratively is unconstitutional.

But then the public is also fickle and two-faced about what it wants.

For at least two decades, the public has cried for an independent anti-corruption agency. In wanting the agency to sever all ties with the A-G’s Chambers, whose interests it doubted, it didn’t ask whether the MACC’s prosecutorial powers are constitutional.

There was much glee as news slowly spread about the illegality of Section 120 but will anyone challenge the similar provision in the MACC Act?

Dr Aziz notes wryly that no one would have the courage to do so as it would be seen as standing in the way of eradicating the scourge of corruption.

Or maybe we should amend Article 145(3) instead; appoint a Director of Prosecutions to handle cases as in Britain and let the A-G be an elected post so its holder is accountable to Parliament, he suggests.

But that may not work with the current make-up of Parliament as neither side would get a two-third majority to pass an amendment to the Constitution.

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