Bersih wants govt to separate AG and public prosecutor offices

 

The Coalition for Clean and Fair Elections (Bersih 2.0) has called on the government to work with other parties in Parliament to reform the Attorney-General’s Chambers as well as the judicial and legal services in Malaysia.

The group listed seven recommendations to separate the AGC from the public prosecutor office and five recommendations to separate the judicial and legal services.

They were part of the latest commissioned report by the group, which was unveiled in a virtual launch today.

The report, authored by UK-based Malaysian lawyer Andrew Yong, highlighted the lack of constitutional safeguards in the combined offices of the attorney-general and the public prosecutor.

The group said this has led to selective prosecutions and unequal enforcement of criminal law in Malaysia.

It added that reforms are needed to ensure judicial independence and restore public trust in the criminal justice system and the AGC.

Below is the summarized list of Bersih 2.0’s recommendations.

Separation of AGC from public prosecutor office:

1. The attorney-general should cease to hold the office of the public prosecutor or be a member of any service commission, and his authority should be limited to only the AGC.
2. Positions of AG and law minister should merge into one and the individual can be nominated by the prime minister and approved by a parliamentary committee.
3. The AG should attend cabinet meetings regularly and participate ex officio in parliamentary proceedings, provided that he is a member of one or the other House.
4. The Yang di-Pertuan Agong should appoint the public prosecutor upon service commission’s recommendation, where PM’s advice can be taken into consideration. PM should submit his advice for the approval of a parliamentary committee as well.
5. The public prosecutor should be appointed for a single term of eight years, subject to the same maximum retirement age, and the same security of tenure as a Federal Court judge.
6. Parliament can require the public prosecutor to consult the AG in particular cases without subjecting the former to the consent, direction, or control of anyone.
7. Parliament can authorise agencies like the MACC, the securities commission and others to conduct prosecutions for specific offences within their remit, but the public prosecutor should have power, with the permission of the court or of the agency concerned, to take over any prosecution.

Separation of the judicial and legal services:

1. The current Judicial and Legal Services (JLS) should be divided into separate offices, each with its own service commission.
2. The Judicial Service Commission should be chaired by the chief justice as the head of the judiciary, with other judicial officeholders and the deputy chairperson of the Public Services Commission as ex officio members.
3. The Legal Service Commission should cease to have the AG as an ex officio member, with his place being taken by the solicitor-general and the public prosecutor.
4. The AG and the solicitor-general should not have authority over members of the legal service appointed or seconded to serve the Public Prosecutor's Chambers, state governments, Parliament or independent commissions.
5. Individual ministries should continue working together with the AGC for law reforms, while the government creates a Law Reform Commission consisting of legal academics and retired judges.

The full report is available on Bersih’s website.

The group cited the history of the judiciary system in Malaysia, which started off following the British model when the country received its independence.

Consequential changes were made to the system during the administration of former prime minister Dr Mahathir Mohammed when former chief justice Salleh Abas was stripped of his position during the 1988 judiciary crisis.

Yong argued that the event highlighted problems in the Federal Constitution where Mahathir was able to recommend Salleh’s suspension without intervention from the judicial service commission.

“He (Mahathir) was able to then appoint a disciplinary tribunal that consisted of whoever he wanted.

“So that’s one of the great problems in our constitution that we should be taking the opportunity to fix,” said Yong.

The group pointed out more political interferences in the judicial and legal services later on, including the dismissal of former AG Abdul Gani Patail in 2015 by former prime minister Najib Abdul Razak.

Yong argued that ensuring no interference from the executive branch of the government in the judicial and legal services is the most important issue at hand.

“In other words, each service commission, whether it be the judicial service commission or the legal service commission, should be structured in such a way that whoever serves within the service, should be able to serve the government of the day without any fear or favour,” he said.

In a statement afterwards, the group urged all political parties in the Parliament to work together and implement the recommendations urgently to show the parties are committed to the institutional reforms promised to the people. - Mkini