Separating the AG from the PP

In the event that the government does not wish to separate the Attorney General from the Public Prosecutor, a middle path is possible.

THE Federal Constitution combines the great offices of the Attorney General (AG) and Public Prosecutor (PP). This was a serious misjudgment by the Reid Commission that drafted our Constitution in 1957, and its inimical effect on the rule of law has elicited learned proposals for reform from the Bar Council, Transparency International, Institute for Democracy and Economic Affairs (IDEAS), and the Institutional Reform Committee.

Many politicians, among them Datuk Seri Azalina Othman Said and Datuk Zaid Ibrahim, have called for amendments to the Constitution to separate the two great offices.

The main arguments in favour of separation are:

1. The AG is the government’s chief Legal Adviser. His office is an arm of the Executive. He acts in the best interest of the government and serves and supports the political executive as much as possible within the law. He defends the government if it is sued in court, whether it is right or wrong. His office drafts all the laws.

2. The AG may be a politician and member of Parliament. He is appointed by the King on the advice of the prime minister. The AG has no security of tenure. He may be dismissed summarily on the advice of the PM, as happened in 2015.

3. The PP, on the other hand, is supposed to act in the interest of society to enforce criminal justice. He is supposed to initiate and conduct criminal prosecutions against all violators of the law without fear or favour of the high and mighty.

The problem is that in Malaysia, unlike many other rule of law societies, the offices of the AG and PP are fused. Section 376(1) of the Criminal Procedure Code states that the Attorney General shall be the Public Prosecutor and shall have the control and direction of all criminal prosecutions and proceedings under this Code.

Due to this fusion, there is a clear conflict of interest when grave offences are committed by Cabinet ministers, senior public servants and the elites of society.

In the case of Long bin Samat (1974), the Federal Court ruled that Article 145(3) gives the AG very wide discretion over the control and discretion of all criminal prosecutions. Not only may he institute and conduct any proceedings that he has instituted, but the courts also cannot compel him to institute any criminal proceedings which he does not wish to institute or to go on with any criminal proceedings which he has decided to discontinue.

This means the AG is not bound to act in accordance with Article 8(1) that all persons are equal before the law and entitled to the equal protection of the law. This was the retrogressive judicial philosophy until about 2015.

Fortunately, recent decisions in Dato Pahlawan Ramli Yusuff (2015), Chin Chee Kow (2019), Sundra Rajoo Nadarajah (2021) and Mohamad Shafie Abdul Rani (2022) have held that the AG’s discretion under Article 145(3) is not absolute and is subject to judicial review in “appropriate, rare and exceptional cases”.

Nevertheless, if the AG/PP can be removed from office anytime by the PM, then the PP’s position is extremely fragile. The Reid Commission’s fusion of roles goes against the spirit of the rule of law and creates problems of independence, accountability, transparency and anti-corruption efforts.

In public interest litigation cases against the government, like UEM (1988), the AG is put in the position of a referee in a soccer match who is also the centre forward or goalkeeper of one of the teams!

4. Justice must not only be done, it must be seen to be done. Perception and reality are both important. If under Article 145 and Section 376 of the Criminal Procedure Code (as well as numerous other laws), the AG has uncontrolled power to initiate, not to initiate, or discontinue proceedings for corruption, crime or other offences, then public perception is that there is no equal protection of the law or equal subjection to the law for the privileged and the poor.

The 1MDB saga, several corruption cases, Covid-19 prosecutions and the Serba Dinamik deal raised the suspicion that high- profile individuals are more equal than others.

5. The PP should have security of tenure and functional independence from the political executive in the performance of his job. There is no perfect model, but Malaysia can benefit by looking at the “best practices” in the United States, United Kingdom, Canada, India and Hong Kong.

Azalina has pointed out that prior to 1960, the AG was not appointed on the advice of the PM but was chosen from members of the Judicial and Legal Services Commission. More importantly, the Constitution granted him a security of tenure till the age of 65. The “politicisation” of the office took place in 1960/63. We can revert to the pre-1960 position.

However, in the event that the government does not wish to separate the AG from the PP, then a “middle path” is possible.

First, the AG’s appointment should be subjected to scrutiny by a parliamentary committee, as in the US. This will provide some transparency.

Second, the AG/PP should have the same security of tenure as the Auditor-General under Article 105(3), the Election Commission under Article 114(3) and judges under Article 125(3).

Third, the courts should reaffirm and develop further their admirable jurisprudence in Chin Chee Kow, Sundra Rajoo Nadarajah and Mohamad Shafie Abdul Rani that the AG’s discretion under Article 145(3) is not absolute and is subject to judicial review in “appropriate, rare and exceptional cases”.

This will strengthen Article 8 (on equality) and the rule of law in our country.

Emeritus Professor Datuk Dr Shad Saleem Faruqi is Holder of the Tunku Abdul Rahman Chair at the Faculty of Law, Universiti Malaya. The views expressed here are the writer’s own.