MP SPEAKS | Azalina to Bersih chair - we're fighting for the same thing

MP SPEAKS | Dear Thomas Fann, chairperson of Bersih 2.0, we are no strangers to each other. Why didn’t you call me directly to ask about my speech at the Umno gathering last Saturday?

After all, we have had a respectful professional working relationship for months on the Anti-Hopping Law and I gladly accepted Bersih 2.0’s invitation to co-chair the Caucus on Reform Agenda.

I would have thought that our relationship transcends beyond the political realm, and I would have appreciated a call from you as a colleague, or even as a friend.

Anyway, since you have made a public statement to express your disappointment in me, I thought that perhaps I should also make a public statement to clarify a few things, just in case you’ve deduced your conclusions based on headlines regarding my speech (like most people do).

I am the same Azalina whom you’ve had countless discussions with and participated together in public forums. A former law practitioner since 1990, and a lawmaker since 2004, I would be the last to condone any intervention of 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 in the appellate court. Did I ask for Pekan MP Najib Abdul 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 BN and as the Pengerang MP. 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 a citizen of Malaysia, or any citizen of Malaysia for that matter, to appeal in a court of law. Every man and woman has the right to defence and the right to adduce new evidence.

Let’s not forget, that the prosecution represents the government of Malaysia, and therefore Najib’s 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.

You accused me of changing my stance on the AG’s appointment since Bera MP Ismail Sabri Yaakob became PM9 and compared it to my statement during Pagoh MP Muhyiddin Yassin’s tenure as PM8.

When I said “orang dia” in my speech last Saturday, it has got 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 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 adviser 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 the syariah courts, the native courts, and court martial.

My stand on the separation of the AG is two-pronged:

i) a political/ministerial AG who sits in the cabinet and attends to and is accountable to Parliament, thus answerable to all lawmakers on every decision that he makes and every advice he gives the government, and

ii) a professional public prosecutor like in the UK where he is a senior career prosecutor, not a political appointee, appointed from the rank and file of the prosecution authority.

Read more: Azalina backs splitting AG's prosecution role, proposes faster alternative

Why else would I be part of Bersih 2.0’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 you missed the point, Fann, that when I said “orang dia”, it means installing a political/ministerial AG in Parliament as I have repeatedly said in the past, especially during the imposition of Covid-19 lockdown emergency period.

Wouldn’t 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, as of now, does not prohibit the AG to be a de facto law minister or vice versa, who sits in the cabinet. This is the arrangement in countries such as Australia, UK, and Canada.

I would also like to remind you and the readers here that our nation had two political/ministerial AGs in the past, Abdul Kadir Yusof and Hamzah Abu Samah, with Umno heritage no less. It didn’t cause any hysteria as it did 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 AGC which at present is headed by an AG who is not a member of either House of Parliament.

Is Bersih 2.0 jumping the gun, or does Bersih 2.0, in demanding a split in the role of AG and public prosecutor as part of the reform agenda, not realise what it demanded?

My question to you is if the Reform Caucus succeeds in bringing reform to separate the AG post, and then the PM decides to appoint a political/ministerial AG in Parliament from the ruling party, would Bersih 2.0 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 its members or be pardoned of all charges. This is not my intention, nor the intention of the special meeting held 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 Najib so that he does not need to face the remaining charges and trial against him?

Didn’t Port Dickson MP Anwar Ibrahim receive his pardon and release a mere seven days after Pakatan Harapan secured victory in GE14? Also, when Tommy Thomas was appointed as AG by then prime minister Dr Mahathir Mohamad, wasn’t he “Orang PH”?

So, my question to you 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 you just move the goalposts? Harapan’s PM changed the AG and so did Perikatan Nasional’s PM, but a PM from Umno/BN cannot change or replace the AG? Double standards, I reckon.

On to my next point. Does Bersih 2.0 have a different legal maxim for Umno/BN politicians than “guilty until proven innocent”?

Is it legally forbidden for a respondent in the Court of Appeal to ask the prosecutor for time or support a motion to change counsels? Shouldn’t the 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 2.0 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. You know what, Fann? At the highest level, Umno does not have a mob mentality. We didn’t take it to the streets and caused inconveniences to members of the public.

So, Fann, I really hope that this is a case of “both sides 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 Pengerang MP.

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