Separation of powers inching on

A word of caution is that in expediting the reform of the AG and PP roles, we must bear in mind that laws, institutions and procedures are as good as the people who administer them.

THE proposal to separate the Attorney General (AG) from the Public Prosecutor (PP) has galloped around the outskirts of our legal system for about eight years. The present Law and Institutional Reform Minister Datuk Seri Azalina Othman informed us that two task forces are pursuing the idea vigorously. However, no time limit has been set for accomplishing the reform.

This article aims to discuss the pros and cons of the proposal and to note the many significant legal and structural changes it will necessitate.

To begin with, the Federal Constitution – in Article 145(3) and 19 or so existing written laws, including Section 376(1) of the Criminal Procedure Code and the Interpretation Act 1948/1967 – will need to be amended. There will be significant financial, legal and staffing implications.

Constitutional position of AG: The office of the Attorney General in Malaysia is constituted by Article 145(1) of the Federal Constitution and is vested with vast and varied functions by the apex law as well as a host of other ordinary statutes.

Over the years, the constitutional position of the AG has been amended significantly to reduce its independence from the political executive.

Before 1963, the AG was appointed by the King after consultation with the Judicial and Legal Service Commission. Since 1963, the AG has been appointed by the federal monarch on the advice of the Prime Minister. The PM’s advice is binding under Articles 40(1) and 40(1A).

Before the coming into force of Article 145(6), the AG’s tenure and terms of service had the same safeguards as that of a judge of the Federal Court.

Since then, the AG has no security of tenure and holds office at the pleasure of the King, who acts on the advice of the PM. In the last decade, two AGs were summarily terminated by the government of the day.

Qualification: The AG must be a person legally qualified to be a judge of the Federal Court. However, it is not required that he or she be non-political and non-partisan. Under Article 138(2)(b), he or she may be a Member of Parliament, a member of the Cabinet, a public servant from the Judicial and Legal Service, or even a practising lawyer.

Answerability: If the AG is a minister, he is answerable to Parliament. But only two AGs in the last 66 years have held Cabinet posts. Given the fact that the AG is the government’s legal adviser and defender in all cases against the government, it is understandable that he is partisan in his role. Therefore, it is recommended that the AG must be an MP.

The PP, on the other hand, must be separate and independent of the political executive and non-partisan in his role of leading all criminal prosecutions. Since Sept 15, 1980, the AG’s Chambers has been under the auspices of the Prime Minister’s Department. This makes it difficult to believe that in the performance of his functions, the AG can act with independence and impartiality.

Functions: Among the numerous and varied functions of the AG, the following are the most significant.

1. Under Article 145(2), the AG is the chief legal adviser to the Yang di-Pertuan Agong and the government.

It is noteworthy that there is no provision for the King to obtain independent legal advice when the King and PM do not see eye to eye on any issue, e.g. in matters on which the King is vested with personal discretion under a host of Articles like Article 40(2).

It is also noteworthy that there is no provision in the Constitution to require the AG to advise the Conference of Rulers in the exercise of the Conference’s discretionary functions under Article 38(6).

During the reign of the last monarch (Sultan of Pahang), the Palace proposed to the Cabinet to set up an independent Privy Council to advise the King and the Conference of Rulers. The Cabinet did not act on the advice.2. The AG institutes, conducts or discontinues at his discretion any proceedings for an offence other than proceedings before a Syariah Court, a Native Court, or a Court Martial, as per Article 145(3). The AG may determine the courts in which, or the venue at which, any proceedings shall be instituted or be transferred to, as per Article 145(3A).

3. Unlike some other countries like India, where public prosecutors are appointed by the state governments under the (Indian) Code of Criminal Procedure, the positions of the AG and PP in Malaysia are fused.

4. The AG has an exclusive monopoly over criminal prosecutions. Any statutes that authorise other public officials to raise criminal proceedings without the consent or authorisation of the AG are constitutionally void.5. The AG performs such duties as may be assigned to him by the King or the Cabinet.

6. The AG discharges functions conferred by the Constitution or so other written laws like the Legal Profession Act 1976, which appoints the AG as the chairman of the Qualifying Board.

7. The AG gives his consent to the institution of civil or criminal proceedings against the King or a Ruler in the Special Court, as per Article 183.

8. The AG advises the federal and state Pardons Boards, as per Article 42(5).

9. The AG is a member of the Judicial and Legal Service Commission, as per Article 138.

10. He heads the joint Judicial and Legal Service. This has serious implications for the rule of law and separation of powers. The AG has a role in the transfer, promotion and discipline of subordinate judges before whom he may appear as a PP or counsel for the government. This means that along with removing the fusion between the AG and PP, there is also a need to consider separating the Judicial Service from the Legal Service.

No judicial review: The non-prosecutorial functions of the AG under 19 or so ordinary statutes are subject to judicial review. But for about 64 years, the courts thought that the prosecutorial functions of the AG are discretionary and immune from judicial review. However, there is now one apex court case that in “appropriate, rare and exceptional” cases, judicial review of prosecutorial discretion in criminal cases may lie – Sundra Rajoo Nadarajah v. Menteri Luar Negeri (2021).

Criticisms: Due to the PM’s role in the appointment and summary dismissal of the AG, the AG or PP’s impartiality and political neutrality are in serious doubt. There are allegations of conflict of interest if the alleged criminal is the PM or a high-ranking political appointee.

There are allegations of selective prosecution of opponents of the government.

There appear to be unconscionable delays and technical hitches in initiating criminal cases against the political elite, even when the investigating authorities have submitted reports to the AGC.

Investigative authorities like the Malaysian Anti-Corruption Commission have no power to prosecute on their own.

Many cases that are commenced by the AGC are later discontinued with DNAA (discharge, not amounting to acquittal).

The 1MDB scandal and the spate of other unsuccessful corruption allegations have cast serious doubts on the integrity of the criminal justice system. The belief is widespread that the PP is not free of political interference.

Another justification for separating the AG from the PP is that the AG’s office is overburdened with too much work in its 10 divisions.

A final word of caution is that in proposing reforms, we must bear in mind that laws, institutions, and procedures are as good as the people who administer them. If there is a lack of integrity in the people who run our institutions, and if there is a wide hiatus between theory and reality, between form and functioning, between content and consequence, and what the law says and what it does, then any law reform will remain in the book and not manifest itself in reality.

As Thomas Jefferson said, “Eternal vigilance is the price of democracy.” We all, as ordinary citizens, have a role to play in remaining vigilant.

The author holds the Tunku Abdul Rahman Chair as Professor of Constitutional Law at Universiti Malaya. He wishes all Muslim readers Selamat Menyambut Maal Hijrah 1446.

The views expressed here are the author’s own.