The call for an INDEPENDENT Public Prosecutor, different from the Attorney General is something that the Malaysian Bar has been calling for a long time...
At the end of the day, the Attorney General is the government's lawyer and legal adviser, and as such as Public Prosecutor, he/she will definitely have a hard time charging a sitting Prime Minister, Minister, Cabinet Member, Members of Parliament of parties supporting((or in government), party members and leaders, their spouses, their children, their friends, their companies...
Now, this trend of Public Prosecutors(also the Attorney General) discontinuing criminal cases mid-stream of politicians and friends, most recent being Ahmad Maslan, makes one wonder about the independence and professionalism of the Public Prosecutor.
The need for an INDEPENDENT Public Prosecutor, different from the Attorney General - gets highlighted even more after GE14. When PH Plus came into power, we had a NEW Attorney General, then when the PN-BN Plus came into power, we again saw a NEW Attorney General.
And, then we also saw several cases where the Public Prosecutor(the AG) discontinued, and in some cases led to acquittals. What is of concern, is that some of this cases involves political personalities and/or their family/friends/etc - Most recent was the infamous Ahmad Maslan's case(he who is the Secretary General of UMNO/BN)...
Our current PM, said that
The Attorney-General’s Chambers (AGC) has established a working committee to study the separation of the roles of the attorney-general (AG) and the public prosecutor (PP), Prime Minister Ismail Sabri Yaakob said.Here, there is a problem as the one that will be affected is the Attorney General - we need a more independent committee made the Bar, SUHAKAM, Judges(Judiciary) and others ...and it needs to be rushed, more so, since now most parties are agreeable to the separation...
Bersih 2.0: Time to split up offices of attorney general and public prosecutor
KUALA LUMPUR, Oct 7 — Electoral watchdog Bersih 2.0 today published a report calling for the immediate separation of the offices of the attorney general (AG) and public prosecutor (PP), to remove political influence from the Malaysian criminal justice system.
During the virtual launch of its report entitled “Reforming the Office of Attorney General and the Judicial and Legal Service in Malaysia”, Bersih chairman Thomas Fann said that it was high time for the reform as a number of prominent politicians are facing criminal charges for corruption.
Separation of attorney general and public prosecutor
The first recommendation touted by the report was that the AG should stop holding the office of the PP, as the AG is a political appointee and does not have security of tenure — making him, along with criminal prosecutions, vulnerable to political and other forms of influence.
The report used as an example the sudden dismissal of the then-AG, Tan Sri Abdul Gani Patail, in 2015, and the actions of his successor, Tan Sri Apandi Ali, in clearing former prime minister Datuk Seri Najib Razak of all criminal offences in relation to the 1MDB scandal at that time.
“In Malaysia, because the AG has the exclusive power to initiate criminal prosecutions, where the AG refuses to bring a prosecution, there is no person or authority that can cause one to be brought,” it said.
The report said that the AG’s authority should only extend to the AG’s Chambers (AGC) and not to the rest of the legal services.
Also suggested was that there should be no major changes to the selection process and tenure of the AG, with the prime minister given the flexibility to choose candidates for the office of AG and law minister, as well as be allowed to combine both roles in one person.
However, it said Parliament should have the right to require the prime minister to submit his recommendation for the AG position for the approval of a parliamentary committee.
It also advocated that the AG should attend Cabinet on a regular basis, and should also have the right, like a Cabinet minister, to participate ex officio in the proceedings of both Houses of Parliament.
Meanwhile, the report said a PP should be appointed by the Yang di-Pertuan Agong based on the recommendation of “the appropriate service commission”.
Additionally, the Agong could consider the advice of the PM on the PP selection and ask the corresponding commission to reconsider its selection one time.
“Parliament should have the right to require the PM, before advising the Agong, to submit his advice for the approval of a parliamentary committee,” it added.
It suggested that the public prosecutor should be appointed for a single term of eight years, subject to the same maximum retirement age and with the same security of tenure as a High Court judge.
In Malaysia, a High Court judge’s tenure lasts to the maximum of the age of 66 and six months, and to remove a judge from office, a tribunal must be appointed by the Yang di-Pertuan Agong to assess if the judge has committed any breaches of code of conduct.
Separation of judicial and legal services
The Bersih 2.0 report also called for the judicial and legal services to be separated, with each having its own commission.
It said the judicial services should include all court registrars, sessions court judges and magistrates, while legal services should include all federal counsel, deputy and assistant PPs and other legal officers.
Currently, all are under the Judicial and Legal Services Commission.
Additionally, the report recommended that although law reform should be under the purview of individual ministries that work together with the Federal AGC, a law reform commission (LRC) consisting of legal academics and retired judges should be created.
The LRC was suggested to be under the oversight of the Ministry of Law, to make proposals for law reform, which should then be laid before Parliament.
The report was commissioned by Bersih 2.0 and written by Andrew Yong —
a UK-based Malaysian lawyer — and takes lessons from several other
democratic countries including the UK, New Zealand, Australia, Canada
and Kenya. - Malay Mail, 7/10/2021
Committee set up to separate roles of AG, public prosecutor, says PM
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PETALING JAYA: The Attorney-General’s Chambers (AGC) has established a working committee to study the separation of the roles of the attorney-general (AG) and the public prosecutor (PP), Prime Minister Ismail Sabri Yaakob said.
In a written parliamentary reply, he said this study would be based on global best practices as well as legal and management matters, which include administration, finance and logistics.
Ismail said the study had been included in Pillar I of “Reforming governance towards greater transparency and enhancing efficiency of public service” under the mid-term review of the 11th Malaysia Plan
Ismail said the AGC, as the coordinating and implementing agency for this initiative, would have to present the study for the consideration of the Cabinet.
“The working committee is also in the process of finalising the Cabinet memorandum in relation to this matter,” he said.
Ismail’s written reply came in response to a question from Ahmad Fadhli Shaari (PAS-Pasir Mas).
In July, former de facto law minister Takiyuddin Hassan said the government had no objection to the establishment of a royal commission of inquiry (RCI) to reform the AGC, provided there was a need to do so.
Takiyuddin had told the Dewan Rakyat in 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. - FMT, 15/9/2021
Separate roles of AG, public prosecutor without delay, say ex-Bar chiefs
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 othe
"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 becomes the public prosecutor, who has 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 prosecutor. 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. - 29/7/2021, FMT
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