Constitution allows Parliament to vet public prosecutor nominee

 

We, the undersigned, congratulate the government for responding positively to the proposal to separate the offices of the attorney-general (AG) and the public prosecutor (PP).

However, we are deeply concerned that the government’s current proposal under the Constitution (Amendment) (No. 2) Bill 2026 (the Bill) lacks any parliamentary checks and balances for one of the most significant appointments in Malaysia’s constitutional order.

We wish to express our firm support for the inclusion of parliamentary committee scrutiny over the appointment process of the PP.

The PP holds extraordinary powers, including the sole authority to initiate, conduct, and discontinue criminal prosecutions. Given the scope of this power and the glaring past evidence of its politicisation, the manner in which the PP is appointed must itself be transparent, merit-based, and shielded from undue influence.

The current bill proposes vesting the Agong with discretionary power to appoint the PP, on the recommendation of the Judicial and Legal Service Commission (JLSC) and after consulting the Conference of Rulers.

It is noteworthy that the JLSC is part of the public services. While we welcome the principle of separation between the roles of AG and PP, the proposed appointment framework risks placing the process entirely beyond meaningful public or parliamentary oversight.

Parliamentary scrutiny

It is our considered position that a constitutional amendment to include parliamentary scrutiny in the appointment of the PP is entirely permissible under the Federal Constitution.

Contrary to suggestions that any such involvement would be unconstitutional on the ground of violation of separation of powers, we view that in our Westminster system of responsible government, the Constitution expressly contemplates scrutiny by external institutions, including Parliament, of executive decision-making.

Key constitutional provisions support this conclusion, such as:

• Article 39 preserves Parliament’s authority to confer executive functions on other persons by law;

• Articles 40(1) and 40(2) together expressly envision that entities beyond the cabinet can be authorised to provide binding advice to the Agong;

• The Agong’s discretion to appoint a prime minister under Article 43(2) is subject to the requirement that the PM-designate must belong to the Dewan Rakyat and must, in the Agong’s judgement, be “likely to command the confidence of the majority of the members of that house”;

• Article 40(3) provides that federal law may require the Agong to act after consultation with or on the recommendation of any person or body of persons;

• Article 3(5) permits Parliament to constitute a council to advise the Agong in matters relating to Islam;

• In relation to the Agong’s power to appoint an Election Commission, Article 114(2) enjoins that the Agong shall have regard to the importance of “securing an Election Commission which enjoys public confidence”.

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• The Agong’s momentous power to proclaim an emergency under Article 150(1) is subject to parliamentary control. Under Article 150(3), a proclamation must be laid before both houses and may be annulled by a resolution of both houses passed by a simple majority.

These provisions demonstrate that the Constitution does not mandate a closed or exclusively executive decision-making process, including the appointment process for high public office.

Reliance on Semenyih Jaya case misconceived

Some have argued that parliamentary involvement in the appointment of the PP would be unconstitutional, relying principally on the Federal Court’s decision in Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat (2017) 3 MLJ 561. This argument fundamentally misreads that judgment.

In the Semenyih Jaya case, the Federal Court struck down statutory provisions that transferred judicial decision-making power to lay assessors, holding that judicial power under Article 121 of the Federal Constitution is vested exclusively and inalienably in the courts.

The court affirmed that the independence of the judiciary forms part of the Constitution’s basic structure and cannot be diluted or reassigned by ordinary legislation.

However, the legal reasoning of the Semenyih Jaya case is confined strictly to judicial power and the protection of judicial independence.

It concerns the relationship between the judiciary and Parliament - it says nothing about executive appointments or the relationship between the executive and Parliament, which is one of conjunction and not strict separation.

To invoke that case as a general constitutional prohibition against Parliament playing any role in appointments to high public office is to distort its legal reasoning beyond recognition.

The case does not establish - and the Federal Court did not hold - that Parliament’s role is limited to passing laws or that Parliament’s oversight functions do not extend to scrutiny of public appointments by the executive.

Indeed, the Semenyih Jaya case itself reaffirmed that the Constitution embodies substantive principles, including the rule of law, separation of powers, checks and balances, and democratic accountability, which must be given generous and purposive effect.

As stated in the subsequent Federal Court decision of Alma Nudo Atenza v PP & Anor Appeal (2019) 5 CLJ 780, at paragraphs 70 and 71, the core of the doctrine of separation of powers is the need for checks and balances mechanisms to avoid the risk of abuse of power.

The executive, parliament, and the judiciary form a mutual check upon each other by regulating and being regulated by the rest.

These are precisely the principles that support, rather than undermine, the case for parliamentary scrutiny over the appointment of the PP. A correct and complete reading of the Semenyih Jaya case reinforces, not diminishes, the case for meaningful oversight of this appointment.

Elements of fusion

Our Constitution adopts a Westminster parliamentary model under a constitutional monarchy, characterised by some elements of fusion of the executive and Parliament in terms of both composition and powers.

It is precisely these elements of fusion that render the Parliament’s checks and balances role and oversight powers over the executive as essential, a fact that is recognised in the Constitution through provisions such as Article 43(3) that requires the cabinet to be collectively responsible to Parliament.

It should be noted that the bill does not move the power of appointing the PP away from the executive - it merely moves the power from the prime minister to other sections of the executive and public service, namely the Agong and JLSC.

Parliamentary scrutiny over the PP appointment is, therefore, not a deviation from our constitutional model but a vital requirement to preserve checks and balances over the exercise of this new power.

Without checks and balances mechanisms, the government’s proposal risks placing the appointment of the PP outside both parliamentary and judicial oversight, a situation that may itself be contrary to the basic structure of the Constitution.

Democratic accountability, the rule of law, and the separation of powers are foundational constitutional values that must be actively safeguarded, not silently surrendered.

Our constitutional solution is scrutiny without substitution. We are calling on MPs as representatives of public interest to play a meaningful scrutiny role in the appointment process, as is done in countries such as Canada, Germany, Switzerland, Kenya, Chile, and other countries.

This is to ensure transparency and compliance with qualification and procedural standards, to distribute accountability across institutions, and to materially reduce the risk of undue influence over the person who will occupy one of the most powerful offices in the Federation.

Therefore, we call on all MPs to:

• Reject any framing that parliamentary scrutiny in the PP appointment process is unconstitutional;

• Amend the bill to include a structured parliamentary scrutiny mechanism as part of the appointment process for the PP;

• Ensure that any final model adopted upholds the values of transparency, accountability, and institutional independence; and

• Recognise that insulating the PP appointment from all oversight does not strengthen prosecutorial independence - it undermines it.

The separation of the AG and the PP represents a historic constitutional moment for Malaysia. We must seize this moment to build institutions that are genuinely independent, truly accountable, and worthy of public trust.

A transparent, multi-layered appointment process with parliamentary scrutiny is not a threat to that goal - it is an integral step towards achieving it. - Mkini

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NGEOW CHOW YING is a lawyer and convener of Projek Sama, and MAHA BALAKRISHNAN is a parliamentary and policy advocacy specialist.

The statement is also endorsed by 19 individuals, including former Dewan Rakyat speaker Ariff Yusof, former Court of Appeal judge Hishamudin Yunus, and former Malaysian Bar president Ambiga Sreenevasan.

The views expressed here are those of the author/contributor and do not necessarily represent the views of MMKtT.