PETALING JAYA: Constitutional lawyers are divided over the Opposition’s call to postpone the reading of two Constitutional Amendment Bills that propose to separate the powers of the Attorney General (AG) and the Public Prosecutor (PP), and to limit the prime minister’s tenure to two terms.
Senior lawyer Datuk Dr Gurdial Singh Nijar disagreed with Opposition chief whip Datuk Seri Takiyuddin Hassan’s claim.
He said that there was no reason to oppose the move to have checks and balances when transferring powers.
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“All this while, the AG, who also acts as the PP, has faced accusations of selective and politically motivated prosecutions.
“Separating the roles would address those concerns,” he said.
He added that removing the AG from prosecutorial powers would reduce allegations of political interference.
“Once the AG no longer holds that power, the Public Prosecutor can carry out prosecutions independently, without interference,” he said.
He said that the PP’s decisions can be subjected to judicial review on certain legal grounds.
“If the PP fails to follow statutory provisions or due process, or if there is abuse of power or mala fide (bad faith) action, those decisions can be challenged in court,” he said.
Takiyuddin said in the Dewan Rakyat yesterday that the readings of the Bills should be deferred.
He said the proposed laws required constitutional amendments and should be deliberated by a special committee for that purpose rather than going through the existing parliamentary special select committee.
Among the issues he mentioned was separation of powers of AG and PP does not strengthen checks and balances and requires judicial review.
He also said the PM’s tenure Bill can be unconstitutional and in conflict with Articles that give the King the power to appoint the prime minister and to require consent from the Conference of Rulers.
Lawyer Nizam Bashir Abdul Kariem Bashir explained that giving prosecutorial powers to the AG can constitute a conflict of interest, particularly when it concerns matters affecting the government of the day.
“The AG functions as the government’s legal adviser,” he said.
“However, things are not as simple as that because if one merely shifts prosecutorial powers from one entity to another without appropriate oversight, where exactly is the improved check and balance?” he asked.
“The traditional position is that PP’s powers are not subject to judicial review.
“The present position is that judicial review is acceptable where the power is exercised unlawfully or mala fide.”
As for opposing the two-term limit on the prime minister, he said, the issue is not about term limits one may have, but if one is unsuited to be a prime minister at the end of the day.
“The present constitutional design does not envisage terms limits and for good reason,” he said.
Nizam Bashir also agreed that there may be some room to argue this particularly if the amendment directly affects the powers or privileges of the Yang di-Pertuan Agong and the Conference of Rulers, which the Opposition mentioned in Parliament.
