Lawyers: Constitution must be amended to remove AG’s prosecutorial powers

Lawyers say separating the functions of the attorney-general and public prosecutor will require more than just amending the Criminal Procedure Code. (Bernama pic)

PETALING JAYA: Lawyers have countered the argument that the functions of the attorney-general and public prosecutor can be separated by tweaking the Criminal Procedure Code, saying separation of powers will require amendments to the Federal Constitution itself.

Speaking to FMT, they said this was because the constitution is the supreme law of the country.

Any amendment to a federal law would be insufficient and could be subject to legal challenge for being unconstitutional, they added.

SN Nair said Article 145 (3) must be amended for the attorney-general to give away his prosecutorial power.

“This devolution of power cannot be treated by amending the Criminal Procedure Code, which would be considered untenable,” he added.

The suggestion to amend the Criminal Procedure Code was made by lawyer Syed Iskandar Syed Jafaar Al Mahdzar, who said the attorney-general’s prosecutorial power could be removed through amendments to Section 376.

Syed Iskandar had proposed that the Criminal Procedure Code be tweaked to state that the public prosecutor has control over all criminal prosecutions and proceedings.

Under the amendment, he said, the attorney-general would be deemed to have irrevocably delegated his powers to the public prosecutor under Article 145 (3) of the constitution.

He said this was allowed under general law.

But Nair, who supports public views that the attorney-general should relinquish his prosecutorial powers due to conflict of interest, said merely amending the Criminal Procedure Code would invite legal challenges.

“Merely amending the Criminal Procedure Code or any other federal law would be incomplete as the attorney-general’s powers are bestowed by the king under the constitution,” he said.

He urged the Pakatan Harapan (PH) government to table an amendment to the constitution, noting that the opposition had also expressed its support for the good of the public.

Abd Shukor Ahmad meanwhile said the attorney-general could not delegate his prosecutorial powers as, according to the constitution, he had the discretion to institute, conduct and discontinue any criminal proceedings under Article 145 (3).

He suggested that Malaysia look to Kenya, which amended its constitution in 2010 to specify the functions of the country’s attorney-general and director of public prosecutions.

At present, the attorney-general has two separate and distinct roles under the constitution as he is both public prosecutor and principal legal adviser to the government.

Following PH’s election victory last year, calls arose for a separation of these functions to prevent conflict of interest. - FMT