LETTER | If Mauritius can, why not Malaysia?

LETTER | After the discharge not amounting to an acquittal (DNAA) of Deputy Prime Minister Ahmad Zahid Hamidi in the Yayasan Akalbudi trial, the call for a separation of the attorney-general (AG) and the public prosecutor roles has heightened.

Electoral watchdog Bersih has given Prime Minister Anwar Ibrahim one week to announce the government's roadmap for separation of powers between the AG and public prosecutor.

Allow me to assist the government by referring to Mauritius, the island republic in the Indian Ocean which gained independence from British rule in 1968, and became a republic in 1992.

Mauritius has a hybrid legal system which combines both civil and common law practices. It is governed by principles drawn from both the French Napoleonic Code and English Common Law.

Mauritius has retained the Judicial Committee of the Privy Council of the United Kingdom as its final court of appeal.

Before 1964, there was in Mauritius an office of procureur-peneral, which has no precise analogue within the British legal system.

Under Article XXXVII of Ordinance No 29 (1853) and Article 48 of Chapter 169 of the Laws of Mauritius in force in 1945, the procureur-Ggeneral was expressly empowered to enter a nolle prosequi, which is Latin for “we will not prosecute further”.

With the advent of the 1964 Constitution, the office of procureur-general came to an end and in its place there were created two new offices, that of AG and Director of Public Prosecutions (DPP).

This arrangement was retained in the 1968 constitution when it attained independence, which remains in force.

Section 69 of the Mauritian Constitution provides for the office of the AG. It reads as follows:

Attorney-General

1) There shall be an attorney-general who shall be principal legal adviser to the government of Mauritius.

2) The office of attorney-general shall be the office of a minister.

3) No person shall be qualified to hold the office of attorney-general unless he is entitled to practise as a barrister in Mauritius, and, no person who is not a member of the assembly shall be qualified to hold the office it he is for any cause disqualified from membership of the assembly:

Provided that a person may hold the office of attorney-general notwithstanding that he holds or is acting in a public office (not being the office of Director of Public Prosecutions).

4) Where the person holding the office of attorney-general is not a member of the assembly, he shall be entitled to take part in the proceedings of the assembly, and this constitution and any other law shall apply to him as if he were a member of the assembly:

Provided that he shall not be entitled to vote in the assembly.

5) Where the person holding the office of attorney-general is for any reason unable to exercise the functions conferred upon him by or under any law, those functions may be exercised by such other person, being a person entitled to practise as a barrister in Mauritius (whether or not he is a member of the assembly), as the president, acting in accordance with the advice of the prime minister, may direct.

Section 72 provides for the office of DPP. It reads as follows:

Director of Public Prosecutions

1) There shall be a Director of Public Prosecutions whose office shall be a public office and who shall be appointed by the Judicial and Legal Service Commission.

2) No person shall be qualified to hold or act in the office of director or public prosecutions unless he is qualified for appointment as a judge of the Supreme Court.

3) The Director of Public Prosecutions shall have power in any case in which he considers it desirable so to do

a) to institute and undertake criminal proceedings before any court of law (not being a court established by a disciplinary law);

b) to take over and continue any such criminal proceedings that may have been instituted by any other person or authority; and

c) to discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by himself or any other person or authority.

4) The powers of the Director of Public Prosecutions under subsection (3) may be exercised by him in person or through other persons acting in accordance with his general or specific instructions.

5) The powers conferred upon the Director of Public Prosecutions by subsection (3)(b) and (c) shall be vested in him to the exclusion of any other person or authority:

Provided that, where any other person or authority has instituted criminal proceedings, nothing in this subsection shall prevent the withdrawal of those proceedings by or at the instance of that person or authority at any stage before the person against whom the proceedings have been instituted has been charged before the court.

6) In the exercise of the powers conferred upon him by this section, the Director of Public Prosecutions shall not be subject to the direction or control of any other person or authority.

7) For the purposes of this section, any appeal from any determination in any criminal proceedings before any court, or any case stated or question of law reserved for the purposes of any such proceedings to any other court, shall be deemed to be part of those proceedings:

Provided that the power conferred on the Director of Public Prosecutions by subsection (3)(c) shall not be exercised in relation to any appeal by a person convicted in any criminal proceedings or to any case stated or question of law reserved except at the instance of such a person.

The above is doable in Malaysia. Amend the Federal Constitution adding Article 145A on Director of Prosecution with consequential amendments to Article 145 (on attorney-general). The unity government has a two-thirds majority.

In any case, the proposed amendments should receive bipartisan support like the constitutional amendments on anti-party hopping (Article 49A).

Bersih’s call for a clear roadmap and timeline for the separation of the AG and public prosecutor is not unreasonable.

Where there’s political will to separate the roles, there’s a way.

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