Separate powers of Attorney General and Public Prosecutor to restore trust in Malaysian judiciary
The A-G needs to come clean and be transparent to explain why and what is the justification and the basis for not proceeding with recommendation of the Malaysian Anti-Corruption Commission (MACC)
Transparency International Malaysia is calling for greater independence of the judiciary in Malaysia by separating the power of the attorney general (A-G) and the public prosecutor (PP). Today the same person holds both posts and is accountable mainly to the prime minister. This is why there have not been serious investigations into the corruption allegations surrounding the prime minister.
Transparency International Malaysia’s (TI-M) understanding on the appointment of the Attorney General (A-G) is under Article 145 of the Federal Constitution whereby the A-G is appointed by The Yang di-Pertuan Agong, on the advice of the Prime Minister.
As in Article 145(3) of the Constitution, the A-G is also the highest ranking public prosecutor in the country and is also known as the Public Prosecutor (PP). Article 145(3) of the Federal Constitution states that the attorney-general shall have power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for an offence, other than proceedings before a Shariah court, a native court, or a court martial. Since the PP is also the A-G, greater concern of his independence and integrity is demanded by the public to ensure that criminal justice is enforced fairly and impartially.
TI-M notes that based on the current situation, the candidate for the post as an A-G does not require the confidence of the judiciary or the public as to his capabilities and integrity.
The current justice system merely requires the candidate for the A-G to gain confidence from his appointer, who is the Prime Minister. This has made it easier for unchecked and inappropriate decisions to be made in relation to cases involving high profile individuals.
This erosion of the A-G’s independence has led to weaker accountability by the prosecution system for his decisions. This can be contrasted with the situation in the United Kingdom where generally speaking the Attorney General of the UK does not interfere in the day to day functions of the Crown Prosecution Services which decides on the prosecution of cases as an independent branch of the government.
In our Malaysian situation therefore it is necessary for the A-G not only to act independently but to be seen to be acting independently in his decisions on whether to prosecute or not especially when high profile cases are involved. In this regard there have been many questions asked from various quarters on the A-G’s decision not to proceed with the three investigation papers submitted by Malaysian Anti-Corruption Commission (MACC) on the RM2.6 billion donation and also SRC International with the MACC.
Very clearly the A-G needs to come clean and be transparent to explain why and what is the justification and the basis for not proceeding with recommendation of the MACC and for instructing MACC to close their files.
Even though the A-G has discretionary power, the exercise of this discretion should be in accordance with law and his duty to uphold the rule of law and including the principle that everyone is equal before the law. This discretion therefore should be exercised for the public good and to prosecute and punish those who break the law. Any such exercise to the contrary would be considered an abuse of discretionary power and deemed unconstitutional.
In view of the above TI-M is of the opinion that other functions of the A-G should be separated from the position of PP to ensure the independence of the criminal prosecution branch of the government. This separation of powers as a method of checks and balance will ensure that prosecution decisions can be made without any fear or favour and protected from political interference.
The position of PP should also be made answerable to Parliament and not to the Executive arm of the Government. Meanwhile since the A-G is a public servant, any decisions made by him should not only be independent, transparent, impartial and fair but also must be seen to be so. His role should be apolitical and no one should be able to doubt his decision when made in the interest of nation and that should be paramount.
There should never be an accumulation of power by a single person or body of government – from time immemorial this has always been the greatest threat to liberty and the life of a nation.
For any press enquiries please contact
Dato’ Akhbar Satar
President, Transparency International-Malaysia
Dr KM Loi
Deputy President, Transparency International-Malaysia
Dr Muhammad Mohan
Secretary General, Transparency International-Malaysia