The powers given to the Attorney-General under the Federal Constitution are wide. It is he who decides, depending on the facts in each particular case, whether to prosecute or not, and if there is a prosecution, in certain cases whether or not the matter can be dealt with by way of compounds.
Section 373(1) of the Capital Markets and Services Act 2007 provides that the Chairman of the Commision may, with the consent of the Public Prosecutor, compound an offence under certain provisions of that act.
Concerns have been raised over the decision of the Attorney-General consenting to compounds in the case of Serba Dinamik. This is particularly so as section 373(2) says upon payment of the said compound, no further proceedings shall be taken against such person in respect of such offence.
Whilst the Attorney-General is empowered to institute, conduct or discontinue criminal proceedings as mentioned earlier, the question is whether there should be transparency in the exercise of that power. It also raises the question of accountability which can only be assessed if there is an explanation to begin with.
There have been numerous calls for the Attorney General to explain his decision in the case of Serba Dinamik. The matter has generated a public debate and caused concerns amongst corporate and capital market players all of whom expect regulatory bodies to play their roles effectively to ensure the credibility of corporate governance and capital market development in Malaysia.
In light of the above, silence is not an option for the Attorney-General. As Public Prosecutor, he must speak up, respond to and address the concerns raised.
He must explain why he consented to the matter being resolved by way of compound and how that, on the facts of this case, inspires confidence.