Separation of roles can help avoid conflicts of interest

KUALA LUMPUR: The proposed separation of powers between the Attorney General (AG) and the Public Prosecutor would mitigate the negative perception of government interference in judicial matters, political analysts say.

Universiti Teknologi Malaysia’s Razak Faculty Perdana Centre political analyst Dr Mazlan Ali said the separation of powers between the AG and the Public Prosecutor would increase public confidence in the transparency of every legal action, especially in criminal cases and prosecutions involving federal, state and local officials.

The roles of the AG (who acts as legal adviser to the government or executive) and Public Prosecutor being played by the same person “must be separated so that there is no more debate and doubt about the government’s intervention in court cases, on whether to prosecute cases, suspend prosecution or on appeals involving certain cases”, he told Bernama.

He was commenting on Prime Minister Datuk Seri Anwar Ibrahim’s statement that in principle, the proposal to separate the roles is being studied even though it would involve financial implications amounting to RM300mil, create complications, and consume a lot of time.

Mazlan said Anwar’s statement gives a clear signal that the government is committed to implementing the proposed separation of powers in line with the administrative reforms currently being carried out by the unity government.

On the need to amend Article 145 of the Federal Constitution before the separation of powers is implemented, the Razak Faculty of Technology and Informatics senior lecturer said this is not an obstacle considering the unity government has the support of 148 MPs, which is over a two-thirds majority, to approve any amendment brought to Parliament.

According to Article 145(2), the role of the AG is to advise the Yang di-Pertuan Agong, the Cabinet or any minister; in other words, the AG’s duty is to act as a legal adviser to the government or executive body, while Article 145(3) provides wide discretionary powers to the AG.

International Islamic University Malaysia Constitutional law expert Assoc Prof Dr Khairil Azmin Mokhtar, who shares the same view, said separating the two roles would strengthen the democratic system and improve the rule of law in the country.

He said with the separation of these roles, the two offices would be able to carry out duties and responsibilities without having to worry about conflicts of interest, thus ensuring the prosecution process can be carried out more transparently and independently, especially when criminal cases involve powerful government officials.

“As an adviser to the government, the AG is considered a counsel to the government ... giving his advice, thoughts or views, all for the good of the government. Here, there will be a conflict of interest when the government [as represented by an official who is charged] is implicated in a crime and is prosecuted – this can be avoided if the two roles are not fused together,” he said.

Khairil Azmin also recommended that the government be guided in the separation of functions between the AG and the Public Prosecutor as practised in the United Kingdom, where the AG is chief legal adviser to the Crown but it is the Crown Prosecution Service prosecutes criminal cases that have been investigated.

“In this way, conflicts of interest will not occur and criminals will be prosecuted without fear or favour,” he added.

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