Should the PM be ordering criminal investigations?

The announcement that Prime Minister Datuk Seri Ismail Sabri Yaakob has directed that former Attorney-General Tommy Thomas be investigated was a little startling to say the least.

I wrote two articles in the aftermath of Thomas’ book, that most would probably consider critical of him - one was about the politics of language, and the other about racism.

Neither those articles nor this one are about attacking or defending the former AG.

The aforementioned announcement however is significant because of the manner in which it was made calls into question the separation of powers.

There are two elements I will explore - the first being the political aspects of this case, and the second being the question of who should have the power to order investigations and prosecutions.

The first thing that came to mind when I read the announcement was that this seems to have an air of ‘balancing’ about it.

The imprisonment of former premier Datuk Seri Najib Razak was a momentous one in Malaysian history. It clearly sent shockwaves throughout the Umno establishment, and put Ismail Sabri in a precarious position - at the brink of facing an internal revolt within his own party, one might say.

A seasoned political observer will thus likely to be inclined to wonder: is this investigation into the man who originally prosecuted Najib’s case a move to try and placate those factions who are still unhappy about the imprisonment?

Is it a move motivated by a desire to score political points by going after individuals seen to be aligned to Umno’s political enemies?

Of course, outsiders like us cannot possibly hope to offer definite answers rooted in solid evidence.

The facts surrounding the matter though certainly raise any number of eyebrows.

I imagine it is the ardent hope of well meaning Malaysians everywhere that the prosecutorial powers of the government not be used to pursue political goals.

To do so would be a blatant abuse of power, and a dire perversion of how the institutions of government and justice should function.

This is to say nothing of the victims of such persecution. We should not play games with people’s lives and liberties, merely because it suits our political purposes.

If Thomas is guilty of any real crime, then by all means prosecute him.

If there are indeed criminal elements in Thomas’ book however, surely any reasonable individual would have to question why on earth this investigation comes now.

Thomas’ book is a long one, but I’m fairly sure it was not long enough to require some 18 months to read.

Given the timing of this announcement - after Najib’s imprisonment and the unending rumours of a dissolution of Parliament - surely one would be forgiven for feeling like something is amiss.

Secondly, there is also the question of the PM giving orders for criminal investigations to be carried out.

As I understand it, this does not really fall under the job scope of the PM.

Is it his place to order investigations into every crime? If not, which crimes is he supposed to order investigations into, and which crimes is he not supposed to order investigations into?

What is the justification and the logic?

The bigger problem once again concerns separation of powers.

In Malaysia, the AG - who is essentially chosen by the PM - is responsible both for advising the government and for all prosecutions.

There can be a key conflict of interest here: What happens then when a member of the government (or heavens forbid, the PM himself) is suspected of a crime? Would an AG be willing to investigate his own boss? What would happen if he did?

As it happens, history renders these questions non-rhetorical.

In 2015, then Attorney-General Tan Sri Abdul Gani Patail appeared poised to begin prosecuting Najib for his involvement in the 1MDB scandal - the very same case that has now landed him in prison.

It seemed to be that as Najib caught wind of this back then, he very simply exercised his power to remove Abdul Gani and replace him with Tan Sri Mohamed Apandi Ali.

When this replacement was complete, all semblance of prosecuting Najib seemed to vanish into thin air, never to return - until Thomas was appointed AG in 2018, following Pakatan Harapan’s formation of the government.

And now things seem to have come full circle, with the PM now directing investigations into Thomas.

I have often written about how we should free ourselves from legacy colonial institutions that are no longer fit for purpose - especially as regards to Westminster democracy.

There are times the British do get it a little more right though - one case being the UK Crown Prosecution Service (CPS).

The CPS does in some sense come under the AG of the UK, but the latter is forbidden from exercising any influence over which cases the CPS decides to prosecute.

This independence and separation is absolutely vital for a democracy to have even the remotest semblance of genuine check and balance.

Without this, the executive ultimately wields way too much power in deciding who is to be investigated for a crime or not. It should come as no surprise that such a structure results in very few members of a sitting government ever being investigated for anything at all - regardless of how damning the evidence may be.

This most recent announcement reminds us once again of this most vital need: true independence for the prosecuting arm of the AG. That is the only way we can inch closer towards a government that truly obeys the law at all times.

NATHANIEL TAN works with Projek #BangsaMalaysia. Twitter: @NatAsasi, Email: [email protected]. #BangsaMalaysia #NextGenDemocracy.

The views expressed in this article are the author's own and do not necessarily reflect those of Sinar Daily.