LETTER | Separation of AG roles: Where there's a will, there's a way

LETTER | Minister in the Prime Minister’s Department (Parliament and Law) Wan Junaidi Tuanku Jaafar was reported to have said that the government was still studying the implications of the proposed separation of powers between the attorney-general (AG) and the public prosecutor (PP).

He further said that although many other countries, including Commonwealth countries, have done this, the proposal was not easy to implement as it would involve amending the Federal Constitution and existing legislation, as well as additional government spending.

“If the proposal is implemented, the AG needs to have his own office, library, staff and advisers because he can no longer share with the public prosecutor.

“We also don’t know how many millions is needed a year to finance this matter,” he told reporters in Kuching on September 4.

We should, however, be mindful that the current 69-member administration – 31 ministers and 38 deputies – just one fewer than his predecessor’s, and with over 20 ministries, is already incurring millions of taxpayers’ money.

The country has had the experience of downsizing administrative positions to serve the people more effectively. The country has also had the experience of separating and merging ministerial duties and functions.

Take the example of the Higher Education Ministry (MOHE), which was first established in 2004. It marked an important part of history in Malaysia, particularly in the development and expansion of the higher education sector. Prior to that, higher education was under the purview of the Education Ministry (MOE).

MOHE was created with the purpose to promote significant growth in higher education. However, in May 2013 it was remerged into MOE, one of the reasons given was to spur the transformation of education to be on par with international standards by 2020.

Two years later though, in the reshuffling of the cabinet in July 2015, MOHE was re-established before being merged again into MOE in 2019.

When then prime minister Muhyiddin Yassin re-established MOHE in March 2020, academic groups warmly welcomed the decision with the Malaysian Academic Association Congress (MAAC) saying in a statement that a separate ministry would mean more focused development of higher education institutions.

According to MAAC president Idrus Mohd Masirin, reintroducing a separate ministry would “enable the ministers responsible for education and higher education to focus on their respective agendas based on their different levels (or requirements) and interests.”

Separating the PP from the AG will be more than warmly welcomed. As many have argued, separation will enable the former to be “free” from any political interference and restore public trust in the criminal justice system.

Now, Wan Junaidi has said that he personally supports the proposed separation of powers, but a comprehensive study is needed before any decision is made.

In “Separation of AG’s roles – here we go again”, I alluded to his predecessor, Takiyuddin Hassan, issuing a statement that the government was already in discussion about the possibility of separating the roles of the AG and the PP. He had also addressed the issue of separation of the two offices in the Dewan Rakyat.

As such, is a comprehensive study still needed? A number of studies have been done in the past years on the separation of the two offices.

Last year, the Coalition for Clean and Fair Elections (Bersih 2.0) commissioned a report entitled “Reforming the Office of Attorney General and the Judicial & Legal Service in Malaysia”.

The report highlights the lack of constitutional safeguards in the combined offices of the AG and the PP, which has led to selective prosecutions and the unequal enforcement of criminal law in Malaysia. 

Years earlier, the Institute for Democracy and Economic Affairs (Ideas) published its Policy Paper No. 34 entitled “Separating the Attorney-General and Public Prosecutor: Enhancing Rule of Law in Malaysia” (2016), making a case for separating the two roles and making recommendations to improve rule of law in the country with regards to the AG and the PP based on best practices abroad.

I wish to add that Australia, which is a common law jurisdiction, may be looked at as well. The Australian AG is a member of Parliament, appointed by the governor-general under the Commonwealth Constitution, on the advice of the prime minister. He is known also as the first law officer.

By convention, the Australian AG is a lawyer and has the role of principal legal adviser to the Commonwealth or federal government. Australia, like Malaysia, is a federation.

Under a federal law called the Law Officers Act 1964, some powers of the Australian AG are delegated to other law officers. For example, the solicitor-general (SG) is designated as the second law officer and is to act as counsel for the Commonwealth and its emanations, to furnish opinions on questions of law referred to him by the AG and to perform such other functions as the AG (Section 12 of the Law Officer’s Act 1964).

Another delegated authority is the Commonwealth Director of Public Prosecutions (CDPP) appointed under yet another federal law, the Director of Public Prosecutions Act.

The Act sets out the functions and powers of the CDPP, including independent responsibility for carrying out prosecutions for offences against Commonwealth or federal laws.

While the CDPP is part of the Australian AG’s portfolio, the office operates independently of both the AG and the political process.

Notwithstanding that under Section 8 of the Act, the AG has the power to issue directions or guidelines to the CDPP, the AG must consult with the CDPP before issuing directions. Any directions or guidelines must also be in writing and tabled in the Australian Parliament.

The CDPP is bound by any directions or guidelines issued by the AG. Since the CDPP was established and up to 2019, seven directions have been issued.

It is important to note, however, that the Federal Constitution expressly provides that the AG “shall have power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for an offence, other than proceedings before a Syariah court, a native court or a court-martial” – Article 145(3). A similar provision is absent in the Australian Commonwealth Constitution.

An amendment to Article 145 is rightly necessary. This can be by inserting a new clause (3B) providing for federal law – much like the provision in clause (3A) – to allow the AG to delegate his prosecutorial powers under clause (3) to a director of public prosecutor, much like the CDPP.

Existing legislation such as the Criminal Procedure Code will need amendments too. It may not be easy work, but doable.

Where there’s a will, there’s a way.

The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.