Be transparent in new PP’s appointment to restore public trust, say lawyers

They say the public prosecutor must also enjoy security of tenure in office.

Laws governing the proposed appointment of a new public prosecutor must not allow them absolute discretion in the conduct of criminal prosecutions, says lawyer Salim Bashir.

PETALING JAYA:

 The separation of the public prosecutor’s office from that of the attorney-general must be undertaken in the spirit of transparency and accountability, say lawyers.

They cautioned that mere structural or cosmetic amendments to the Federal Constitution and other laws would not restore public confidence, as the PP has control over all criminal proceedings.

Lawyer SN Nair said any reform that does not include security of tenure for the office holder would be perceived as hollow and meaningless.

SN Nair.

“The original constitutional safeguard on security of tenure as per the pre-amended Article 145 must be restored, or else this reform risks becoming symbolic rather than substantive,” he told FMT.

He was commenting after Prime Minister Anwar Ibrahim announced a series of institutional reforms on Jan 5, including the long-awaited bill to divest the AG of his prosecutorial powers.

The bill is expected to be tabled in Parliament this year.

Under the current constitutional arrangement, the AG, who also serves as the PP, is appointed by the Yang di-Pertuan Agong on the advice of the prime minister, and holds office at the pleasure of the king.

Nair said this marked a clear departure from the original design of the 1957 Merdeka constitution, where Article 145 was carefully structured to ensure prosecutorial independence.

That safeguard, he said, was removed following a constitutional amendment in 1963.

Nair, who previously represented Anwar in both criminal and civil proceedings when the current prime minister was the opposition leader, said that under the original constitutional framework, the PP could not be removed at will.

Removal was permitted only on the same grounds and in the same manner as a judge of the Federal Court, through a tribunal process, unless the office holder chose to retire voluntarily.

He said that if Malaysia is serious about restoring public confidence in prosecutorial independence, a key amendment must mandatorily provide constitutional security of tenure.

“Any independence in name, without independence in tenure, is illusory,” he said.

Salim Bashir.

Lawyer Salim Bashir said the separation would mark a defining constitutional reform in Malaysia’s criminal justice system, helping to restore public trust.

He said that currently, both the positions of the AG and PP are held by the same person, and may, in certain cases, give rise to a conflict of interest.

“As the PP, the attorney-general is required to act independently and impartially. However, the interest of his client (the government of the day) may not fully coincide with public interest,” said Salim, a former Malaysian Bar president.

He said the separation must embody good governance and transparency to safeguard the rule of law and the independence of the PP’s office.

Salim also said the PP’s absolute discretion in the exercise of his powers in directing criminal prosecutions should also be curbed through an amendment to Article 145(3) of the constitution.

“The courts should be allowed to intervene and question the exercise of the PP’s discretion, such as when the trial is already at the defence stage,” he said.

For accountability, he said, it is important that the PP’s office submits a report to Parliament for its scrutiny.

Senior lawyer Kitson Foong said the separation is a complex institutional reform that requires a major overhaul of existing laws and the public service structure.

Foong said the current Judicial and Legal Service Commission structure must be reformed so that the independent PP would have full control over its own staff.

“For example, a Public Prosecution Service Commission must be established – a separate entity under the control of the independent PP,” he said.

This would give the public prosecutor authority to manage their own staff, eliminating any avenue for executive interference in prosecutors’ careers.

“New legislation is also needed to ensure the PP’s salary and budget are charged directly to the Consolidated Fund (similar to judges), preventing any attempt to slash funds becoming a tool of political pressure,” he said.

Foong said that apart from the constitution, Section 376 (1) of the Criminal Procedure Code should be amended to name the new, independent PP as the supreme authority responsible for the control and direction of all criminal prosecutions. - FMT