As a judge in the Court of Appeal, I was once told by my brother judge that the attorney-general (AG) is probably the most powerful man in Malaysia.

There is indeed some merit to that contention, since the AG has power over the liberty of a person in the first instance. It is the AG who decides whether a charge is to be preferred against any person, which could lead to the person’s arrest, remand, restrictions on his movements, and, in the event of a conviction, incarceration.

The Federal Constitution vests absolute power in the AG to decide whether to prosecute a suspect for an offence under the law. That would obviously include a whistleblower who may have participated in the very criminal activity he is now divulging information about.

But the AG cannot act oppressively against any person as it may impinge on the legitimacy of the government’s hold on power, especially when such acts are directed at politicians who may be held in high esteem by the state or certain segments of society.

The AG must, therefore, both as a matter of convention and in accordance with the rule of law, exercise his prosecutorial powers fairly and justly.

In doing so, the AG may have his own dilemma to contend with, as he has no security of tenure and holds office entirely at the pleasure of the executive.

He does not take an oath to preserve, protect and defend the constitution as he is a direct representative of the executive. Having said that, members of the executive must act in accordance with their own oaths of office by ensuring that the AG upholds the rule of law.

The AG is not answerable to the court if he refuses to prosecute anyone or abandons an ongoing criminal process. However, he may be answerable for an arbitrary or wrongful exercise of power if the victim complains to the court. In such cases, the court has the constitutional and judicial power to grant appropriate relief, which may include ordering monetary compensation against the state.

The AG is also answerable to the rulers, as he is appointed by the Yang di-Pertuan Agong and also because, as I have opined previously, the rulers are, under our constitutional framework, the final guardians of the rule of law, which the executive, legislature and judiciary are only licensed to administer.

In the Malaysian context, the absolute power granted to the AG cannot be diluted by any ordinary law, including the Whistleblowers Act 2010 (WBA) which gives a discretion to the investigative agencies whether to prosecute a whistleblower.

Different countries may impose different conditions upon which it may offer whistleblowers statutory immunity. These laws tend to give a specific definition to who is considered a whistleblower.

The WBA is, in my view, a piece of social legislation. It is designed to curb corruption which impacts the poor and needy adversely by diverting public funds intended for their benefit into the pockets of syndicated thieves as well as the political and administrative whores who hold high office.

The preamble to the act makes it clear that it is intended “to promote disclosure of information about any corruption or other misconduct”.

The law, which allows the state to grant informants of such crimes immunity from prosecution even if they have themselves participated in the wrongdoing, is not something new in the common law world.

States have long accepted that offering whistleblowers protection is prudent as it will allow investigative authorities the opportunity to uncover vital information capable of securing a desired conviction and curb undesirable criminal activities.

The WBA adopts the common law practice of preserving the discretion as to whether to give protection to whistleblowers subject to strict compliance of conditions laid down for them.

In contrast, a suspected criminal in Malaysia has no constitutional or statutory right to demand immunity from prosecution.

I was myself a whistleblower on the judiciary, in line with the oath of office which I took upon my appointment as a judge. In my case, I was not a party to any misconduct.

I take the view that the terms of protection prescribed under the WBA are meant to ensure executive control so that public institutions and agencies as well as members of the executives are not exposed without the appropriate vetting of the information disclosed and of the informant’s own participation in the crime complained of and the extent of his culpability.

In my view, the WBA is, at best, only a procedural guideline which the AG may rely on when deciding whether to prosecute a common law or statutory whistleblower.

However, the AG is duty bound to take cognisance of the preamble to the WBA and only exercise his discretion in favour of a whistleblower upon the successful prosecution of public miscreants.

One prudent measure that the AG may consider is whether to charge a common law whistleblower first in court based on his confession, and stay all proceedings, including the sentence, until all related criminals are successfully convicted. This will ensure that the whistleblower does not change his tune during the trial of other accused persons.

Upon the successful conviction of the public miscreants, the AG may request a discharge not amounting to an acquittal (DNAA) for the whistleblower.

In my view, the guarantee of immunity from prosecution set out in the WBA is merely a gimmick. Whistleblowers who are found to have participated in the crime being investigated are liable under the WBA to lose the protection offered.

Nonetheless, the AG has an absolute right to record a “nolle prosequi” (unwillingness to pursue a case further) against a whistleblower who has been charged, or not to prosecute him altogether, after balancing the benefit of the information to the public.

The views expressed are those of the writer and do not necessarily reflect those of FMT.