PETALING JAYA: The government has been urged to prioritise the separation of the roles of the attorney-general (AG) and the public prosecutor (PP), with other reforms to the Attorney-General’s Chambers (AGC) coming later.
Two former Malaysian Bar presidents said divorcing the post of the attorney-general, who is the chief legal adviser to the government, and that of the public prosecutor, who is the guardian of the public interest, would bring immense benefit to the administration of justice.
Salim Bashir said the Bar had, in the past, passed resolutions and issued statements calling for the functions and roles of the attorney-general and the public prosecutor to be separated as they were in conflict with each other.
“This should be given priority over everything else and that is the stand of the lawyers,” he said.
Under Article 145(1) of the Federal Constitution, it is the duty of the attorney-general to advise the Yang di-Pertuan Agong or the Cabinet or any minister.
Salim said that under Article 145(3), the attorney-general also became the public prosecutor, who had the power to use his discretion to institute, conduct or discontinue any criminal proceeding.
“A conflict arises when the attorney-general has to decide whether to prosecute politicians who are part of the government of the day,” he said.
He said amending the constitution and the Criminal Procedure Code (CPC) to give this effect should be the first order of business when Parliament formally sits in the later part of the year. All MPs should support it as it is for the greater good of the country and the people.
“Two-thirds support of MPs is needed to amend Article 145, while only a simple majority is needed to amend Section 376 of the CPC to clearly separate their roles,” he said.
Salim said reforms to the AGC, which is the government’s law firm, could come later.
He said this in response to a call by former law minister Azalina Othman Said last Friday for the Perikatan Nasional government to set up a royal commission of inquiry (RCI) into reforming the AGC, in noting the trust deficit of the public in the AGC.
Azalina said unless it was resolved, the trust deficit would inadvertently contribute towards a political impasse and stand in the way of the government’s endeavour to rebuild public confidence in key institutions.
On the same day, law minister Takiyuddin Hassan said the government had no objection to the establishment of a RCI to reform the AGC, provided there was a need to do so.
Takiyuddin had told the Dewan Rakyat last November that a paper on the separation of powers would be submitted to the Cabinet by the end of the year, and that the AGC was then in the final stages of drafting it.
Another former Bar president, Zainur Zakaria, said an RCI was unnecessary as it was done to investigate matters of national interest or if there was allegation of misconduct in a public institution.
He said the Bars in the peninsula, Sabah, Sarawak, the AGC and other relevant stakeholders should jointly submit a paper to have different individuals hold the posts of attorney-general and public prosecutor.
“More importantly, the public prosecutor should only be answerable to Parliament,” he said.
Zainur said former attorney-general Tommy Thomas and the Pakatan Harapan (PH) government had made attempts to fulfil their election manifesto but they were booted out after 22 months in power.
In 2018, PH pledged to separate the responsibilities of the attorney-general from those of the public prosecutir. A five-member institutional reform committee (IRC) chaired by retired judge the late KC Vohrah was then set up.
PH 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 to carry out prosecutions. - FMT
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