PETALING JAYA: All that is needed for Pakatan Harapan (PH) to fulfil its election pledge to separate the functions of the attorney-general and public prosecutor is the amendment of a provision in the Criminal Procedure Code, a lawyer says.
Syed Iskandar Syed Jafaar Al Mahdzar told FMT that Section 376 of the Criminal Procedure Code needed to state that the public prosecutor had control over all criminal prosecutions and proceedings.
He said the public prosecutor should be appointed by the king on the advice of the Cabinet, with salary and emoluments to come from the consolidated fund.
The amendment should also state that the attorney-general be deemed to have irrevocably delegated his powers to the public prosecutor under Article 145 (3) of the Federal Constitution, he added.
“There is a limit to the delegation of legislative power, but not executive authority. This means the attorney-general could assign his prosecutorial power to the public prosecutor under the Criminal Procedure Code,” he said.
According to Syed Iskandar, the attorney-general under general law is allowed to delegate his prosecutorial power to another individual.
He was responding to the call by electoral watchdog Bersih 2.0 for Putrajaya to separate the powers of the attorney-general and public prosecutor.
Bersih had said that a two-third majority in Parliament was not necessary to amend the constitution.
It also said the proposed separation would end “selective prosecution and impunity”, and that politicians in the wrong would be unable to escape judicial punishment if they chose to join the government of the day.
It voiced doubt that the opposition would vote against the separation of functions even if an amendment was needed to the constitution.
Last month, Umno and PAS said they would support any amendment to the law to separate the powers of the attorney-general and public prosecutor.
Following PH’s victory in the 14th general election, the Malaysian Bar also called for a separation of functions between the attorney-general and public prosecutor to prevent conflict of interest.
Its president, George Varughese, said the attorney-general presently had two separate and distinct roles under the constitution as he was both public prosecutor and principal legal adviser to the government.
“As the public prosecutor, the attorney-general is required to act independently and impartially, and act as the guardian of public interest, uninfluenced by any political considerations.
“He thus finds himself in an unenviable and arduous position of conflict of interest from time to time, when the interest of his client – the government of the day – may not fully coincide with public interest,” he said.
He added that past experience showed that such situations would arise when politicians were prosecuted for criminal offences.
On March 15 last year, PH pledged in its manifesto to separate the responsibilities of the attorney-general from those of the public prosecutor.
It said the attorney-general would be appointed from among qualified MPs and would be a minister, acting as legal adviser to the government.
The public prosecutor, meanwhile, would be an individual free from political interests with autonomy in carrying out prosecutions.
Tommy Thomas, a practising lawyer, was appointed as attorney-general on a two-year contract beginning June 4 last year. - FMT
No comments:
Post a Comment
Note: Only a member of this blog may post a comment.