Written by Michelle Lee Xi Foong, Intern at MCCHR
In Malaysia, the roles of Public Prosecutor and Attorney General are consolidated into a single position. This means that one individual serve both as the government’s legal advisor and as the entity responsible for pursuing criminal charges against offenders.
According to Article 145 (1) of the Federal Constitution of Malaysia, the Yang di-Pertuan Agong (YDPA) appoints the Attorney General on the advice of the Prime Minister. The Attorney General acts as the government’s lawyer by providing legal counsel to various entities including the government, the YDPA, members of the Prime Minister’s Cabinet, and Ministers as detailed in Article 145 (2). Given this role, the relationship between the Attorney General and the Prime Minister resembles that of a lawyer-client dynamic. Notably, the Attorney General’s position is not accountable to the Malaysian Parliament or the electorate through elections. Consequently, there are limited avenues for recourse if the Attorney General’s actions are perceived as unjust, as the position wields broad discretionary powers outside the scope of Article 8 of the Federal Constitution. This is unless checks are initiated by the Prime Minister or the YDPA as outlined in Article 8, Article 145(3), Long bin Samat & Ors. V. Public Prosecutor (1974) 2 MLJ 152, Tun Mohamed Suffian, and Repco Holdings Bhd v Public Prosecutor (1997) 3 MLK 68.
Issues arise when the powers of the Attorney General and the Public Prosecutor are consolidated in one individual. Article 145 (3) outlines this fused role by granting the Attorney General the authority to “institute, conduct, or discontinue any proceedings for an offense, other than proceedings before a Syariah court, a native court or court-martial” essentially conferring prosecutorial powers. Section 376(1) of the Criminal Procedure Code (CPC) explicitly states that the “Attorney General shall be the Public Prosecutor and shall have the control and direction of all criminal prosecutions and proceedings under this Code.” When the chief prosecutor’s role is merged with that of serving the government’s interests, there is a risk that decisions made by the Attorney General acting as Public Prosecutor may be unduly influenced by the Prime Minister’s office. The Attorney General may feel compelled to align with the Prime Minister’s preferences, given the precarious nature of their tenure, which lacks term limits or appointment guarantees, subject to the YDPA’s appointment and the Prime Minister’s whims. While replacing the Attorney General to suit the government’s needs is not unconstitutional, this dual role enables the government to potentially exert pressure or remove the Attorney General if they disagree with certain criminal charges pursued or directions taken.
The current Madani government has expressed support for separating these roles. Law and Institutional Reform Minister and the Prime Minister himself have affirmed this commitment but are deliberating various considerations before initiating separation. These considerations encompass financial implications, such as establishing an independent Public Prosecutor’s office, as well as determining its structure and placement within the government. Additionally, legislative amendments would likely be necessary to delineate the roles of the Attorney General and Public Prosecutor, potentially affecting Article 145(3) of the Federal Constitution, Section 376(1) of the Criminal Procedure Code, and the Interpretation Acts 1948 and 1967.
When contemplating the selection mechanism for the Public Prosecutor, Malaysia could draw inspiration from other nations or examine domestic models, such as the selection process for members of the Malaysian Bar Council. As of 2021, the United States is the only country with popular elections for most Public Prosecutors at the state level, often conducted along party lines or based on partisan involvement. However, concerns have been raised regarding the impact of popular elections on candidates’ priorities, potentially leading to decisions aimed at securing re-election rather than serving the public interest. Alternatively, appointing Public Prosecutors directly, as commonly done in Southeast Asia, avoids some pitfalls of popular elections but may still carry its own set of issues including potential political influence.
One potential selection mechanism involves adapting the appointment mechanism used for the Attorney General to select the Public Prosecutor. Another suggestion by the Malaysian think tank IDEAS involves the Attorney General presenting a list of nominees shortlisted by a Selection Committee, with the final candidate selected by the Attorney General and subject to approval by the Dewan Rakyat through a vote.
Another option is to adopt a hybrid system where elections occur, but voting power is limited to a specific group. Scholars have proposed a system where the Bar Association nominates candidates, with judges from the highest court in the jurisdiction selecting the Public Prosecutor from these nominees. This approach is similar to the electoral process employed by the Malaysian Bar Council to select its members, ensuring candidates are qualified legal professionals and minimizing the influence of partisan politics. Members of the Malaysian Bar would submit nominees endorsed by at least three other members of the Malaysian Bar. These nominees would then be up for election with all members of the Malaysian Bar eligible to vote. The winning candidate could be determined by a super majority vote (two-thirds of the votes) or the candidates with the two highest number of votes could go to a runoff election.
Such a system mitigates the risks associated with popular votes, as candidates would not need to align with political parties or engage in campaign activities, thereby reducing the potential for political interference in their duties as Public Prosecutors. By entrusting the selection process to the Malaysian Bar, the nation would be placing the responsibility for choosing the “people’s attorney” in the hands of qualified legal practitioners.
References
Adib Povera, “PM reaffirms commitment to separation of powers between AG and PP,” New Straits Times, September 8, 2023, PM reaffirms commitment to separation of powers between AG and PP (nst.com.my).
Aira Nur Ariana Azhari and Lim Wei Jit, “Separating the Attorney-General and Public Prosecutor: Enhancing Rule of Law in Malaysia,” Policy IDEAS, no. 34, (December 2016): p. 2-11. chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://www.ideas.org.my/wp-content/uploads/2021/04/PI34-Separating-the-Attorney-General-and-Public-Prosecutor.pdf.
Association of Southeast Asian Nations, “Overview of Cambodian Judiciary,” Council of ASEAN Chief Justices. https://cacj-ajp.org/cambodia/judiciary/overview-of-cambodian-judiciary/.
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