March 22, 2019.
Recollections & Reflections – A commentary
TWO cases, both affecting foreigners and for that reason the reactions were rather subdued, limited to only a few voices, but both involved the same institution which most people look to when searching for good governance.
Despite that, on most days the Attorney-General’s Chambers is also to most people another brick in the wall, one of more than a few institutions doing what is required of it by law and never expected to stray.
When it became known recently that AG Tommy Thomas had decided to withdraw the charge against Indonesian Siti Aisyah in the murder case of North Korean Kim Jong Nam while at klia2 in February 2017, it wasn’t the type of news that moved most Malaysians, most likely because the accused and the victim were strangers to most. That made it difficult for the average Joe to feel sentimental about it.
But to those more familiar with the law, this was a decision without precedent, especially when Siti Aisyah had a co-accused, Vietnamese Doan Thi Huong, who now remains as the sole accused. No wonder Doan is reportedly stressed out. What made the decision of the AG highly unusual was because the judge had called for the defence of both co-accused, which means the court found the evidence against them to be strong.
That the AG has sole, absolute power to prosecute or withdraw a charge was never the issue. What was questioned was the reason for this decision so late in the trial.
All the critics wanted was an explanation from the AGC, the way it did last year when it withdrew the case against former Penang chief minister and now Finance Minister Lim Guan Eng. Under normal circumstances the AG is not obliged to give a public explanation on why a charge has been withdrawn but for the reasons stated above, the Siti Aisyah case was unusual, or as lawyer and DAP MP Ramkarpal Singh said “unprecedented and regrettable”.
Also voicing out to ask for an explanation was newly elected Bar Council president Abdul Fareed Gafoor.
Reporters did ask Thomas for his reason but he chose to keep mum and walk away.
An explanation would stop the speculations, notably that a hand outside of the AGC was involved in influencing the decision favouring Siti Aisyah, and thus reaffirming the perception that the AGC is not truly independent or free from political interference.
MCA president Datuk Seri Dr. Wee Ka Siong referred to a written reply in Parliament which said the AG could follow a directive from the prime minister. While this position may be correct and acceptable from an administrative perspective, it surely cannot apply to a point of law or fact in a case.
The only explanation we know is that an Indonesian minister had written to the AG pleading on behalf of Siti Aisyah. The other disturbing point is that another representation that followed from Vietnam for a decision in favour of Doan was rejected, which means Malaysia had taken a discriminatory position when Malaysian law says it doesn’t.
Since there has been no explanation from the AGC, I am inclined to speculate thus: Apart from contact from the Indonesian minister, there must have also been contact from president to prime minister and from there it doesn’t need a brainy bloke to guess where the trail led to.
How did AGC get involved in deportation process?
Perhaps more baffling was what happened in the case of some foreigners suspected to be terrorists who were deported, with Inspector-General of Police Tan Sri Mohamad Fuzi Harun stating that the police had obtained instructions from the deputy public prosecutor to expedite the extradition process. “We wanted to stop their connection with terrorists abroad and activities”, also said Fuzi.
It must be mentioned that these foreigners had been arrested and detained prior to deportation and that being the case, how could they be making any contact with anyone outside?
But more significantly, how did the AGC get involved with this and how did the case get there in the first place?
Where the law is concerned, the jurisdiction and power to deport lies with the director-general of Immigration and he alone and strangely, we have not heard a word from him on this.
The law also provides for due process, which means allowing room for a potential deportee to challenge the decision before the courts.
Maybe everyone takes a casual stance because deportation affects only foreigners, who having been deported, are unlikely to challenge the Malaysian decision from wherever they are.
Just maybe but for sure those not involved in arriving at the decision to deport will never know.