Constitution (Amendment) (No. 2) Act 2026 is the law before Parliament now, finally to make the SEPARATION of the Public Prosecutor and the Attorney General.
We want an INDEPENDENT Public Prosecutor - for all matters considering the administration of criminal justice in Malaysia
a) First ISSUE - who chooses the Public Prosecutor, which is a very important position and must be INDEPENDENT, which means that the PM/Executive Branch should not be picking the Public Prosecutor. Some recent decisions not to Charge in Court, and to discontinue criminal proceedings seem to suggest possible interference of the PM and/or Government of the day - the case of Zahid Hamidi(DPM and President of UMNO/BN), the still not charging of the politicians in Sabah, etc...
So, who picks the Public Prosecutor is VERY IMPORTANT - now it says the Judicial and Legal Service Commission, but even after the amendment, the worry is that 4 of the JLSC, are persons who may be 'picked' by the Prime Minister > so we need some changes here to make the JLCS more INDEPENDENT - and 2nd, there is doubts whether KING must follow the 'recommendations'(better to use ADVICE)...
The law proposed says,
145 a. (1) The Yang di-Pertuan Agong shall in his discretion, on the recommendation of the Judicial and Legal Service Commission and after consultation with the Conference of Rulers, appoint a person qualified under Clause (2) to be the Public Prosecutor for the Federation.
Concerns:-
# What does this mean? Does the King have a DISCRETION not to follow the recommendation of the Judicial and Legal Service Commission?
Is it not better to say, ' Yang di-Pertuan Agong shall act in accordance with the advice of the Judicial and Legal Services Commission', words that remove all DOUBTS that the King have the option to act differently and ignore the recommendation of the JLSC?
Note Art.40(2) which clearly states, '(1A) In the exercise of his functions under this Constitution or federal law, where the Yang di-Pertuan Agong is to act in accordance with advice, on advice, or after considering advice, the Yang di-Pertuan Agong shall accept and act in accordance with such advice.' - this is CLEAR giving the King no ability to ignore or not follow the 'ADVICE' of the JLCS.
Next, we have to look at the Judicial and Legal Service Commission(JLSC) - is it truly INDEPENDENT of the PM and/or the Executive Branch of Government?
The proposed law says that 'Judicial and Legal Service Commission shall consist of the Chairman, the Chief Judge of the High Court in Malaya, the Chief Judge of the High Court in Sabah and Sarawak and the member appointed by the Yang di-Pertuan Agong under paragraph (c) of Clause (2) of Article 138.
What does the current Constitution say about the composition of the Judicial and Legal Services Commission?
Art. 138 Judicial and Legal Service Commission(1) There shall be a Judicial and Legal Service Commission, whose jurisdiction shall extend to all members of the judicial and legal service.
(2) The Judicial and Legal Service Commission shall consist of—
(a) the Chairman of the Public Services Commission, who shall be Chairman;
(b) the Attorney General or, if the Attorney General is a member of Parliament or is appointed otherwise than from among members of the Judicial and Legal Service, the Solicitor General; and
(c) one or more other members who shall be appointed by the Yang di-Pertuan Agong, after consultation with the Chief Justice of the Federal Court, from among persons who are or have been or are qualified to be a judge of the Federal Court, Court of Appeal or a High Court or shall before Malaysia Day have been a judge of the Supreme Court.
(3) The person who is secretary to the Public Services Commission shall be secretary also to the Judicial and Legal Service Commission.
4. Article 138 of the Federal Constitution is amended—
(a) by inserting after Clause (1) the following Clause:
“(1a) The Judicial and Legal Service Commission shall also exercise any other functions as provided for under any other Article of this Constitution including recommending a person to be appointed as the Public Prosecutor for the Federation under Clause (1) of Article 145 a .”; and(b) in Clause (2)—
(i) by inserting after paragraph (a) the following paragraphs:
“(aa) the Chief Judge of the High Court in Malaya;
(ab) the Chief Judge of the High Court in Sabah and Sarawak;”;
(ii) by substituting for paragraph (b) the following paragraph:
“(b) the Attorney General, provided that he is not a member of Parliament;”;
(iii) by inserting after paragraph (b) the following paragraphs:
“(ba) the Public Prosecutor;
(bb) the Solicitor General; and”; and(iv) by substituting for paragraph (c) the following paragraph:
“(c) a member who shall be appointed by the Yang di-Pertuan Agong in his
discretion, after consultation with the Chief Justice of the Federal Court, from among persons who are or have been or are qualified to be a judge of the Federal Court, Court of Appeal or
a High Court.”
THUS, after amendment of Art. 138, the Judicial and Legal Services Commission's composition shall be:-
(a) the Chairman of the Public Services Commission, who shall be Chairman;
(aa) the Chief Judge of the High Court in Malaya;
(ab) the Chief Judge of the High Court in Sabah and Sarawak;
(b) (b) the Attorney General, provided that he is not a member of Parliament; and
(ba) the Public Prosecutor;
(bb) the Solicitor General;
## Now, the Chairman of the Public Service Commission, the Attorney General and the Solicitor General are persons, I believed, picked by the Prime Minister. How will the King decide on his appointee - possibly in consultation, or on the advice of the PM of the day > thus 4 of the 7 persons in the Judicial and Legal Services Commission maybe persons 'picked' by the Prime Minister - and here lies a problem in the INDEPENDENCE of the JLCS who will pick the Public Prosecutor?? Same problem with the Judicial Appointments Commission(JAC) that picks Judges - 5 PM Appointees, in that 9 person JAC?(c) a member who shall be appointed by the Yang di-Pertuan Agong in his
discretion, after consultation with the Chief Justice of the Federal Court, from among persons who are or have been or are qualified to be a judge of the Federal Court, Court of Appeal or a High Court.
Should we ADD a few to make the JLSC more balanced and INDEPENDENT - What about adding the following :- President of the Malaysian Bar, President of the Sabah Law Society, and the President of the Advocates Association of Sarawak ? What about making the Chair some other than the Chairman of the Public Services Commission, or maybe should we remove this Chairman?
' (4) The Public Services Commission shall consist of the following members appointed by the Yang di-Pertuan Agong in his discretion but after considering the advice of the Prime Minister...' Remember what the Constitution says '(1A) In the exercise of his functions under this Constitution or federal law, where the Yang di-Pertuan Agong is to act in accordance with advice, on advice, or after considering advice, the Yang di-Pertuan Agong shall accept and act in accordance with such advice.'
Another suggestion, is whether Parliamentary Prior Approval required before anyone is appointed by King as Public Prosecutor? Would this also include a VETTING process to ensure that the person selected is a Good, Qualified Person and who will ACT Independently?
The Public Prosecutor and SECURITY of TENURE?
Good, that the proposed amendment fixes the TENURE of the Public Prosecutor in new Art. 145A (5) the term of office of the Public Prosecutor shall be seven years.
Should we not amend this to say that the term of office of the Public Prosecutor shall be until the Retirement Age(65), or seven years, whichever is longer?? Why restrict the PP to just 7 years - when he still may have not reached his/her RETIREMENT Age?
The UNCHECKED Powers of the PUBLIC Prosecutor?
145 b. (1) The Public Prosecutor 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.
(2) Where the consent of the Attorney General personally is required for the institution of criminal action under this Constitution, such consent shall not be given except with the consent of the Public Prosecutor personally.
JUDICIAL REVIEW of Public Prosecutor NEEEDED to prevent ABUSE of power and wrongs?
Of late, there is much disappointment and concern, when the AG/PP, now the Public Prosecutor in the exercise of his/her power '... to institute, conduct or discontinue any proceedings for an offence...' Why were some people not charged and tried for their crimes? Why did the Public Prosecutor AGREE or decide not to charge or proceed with criminal trials, and used 'questionable deals' with the accused to stop criminal trials? Why did the Public Prosecutor withdraw criminal appeals, like the recent withdrawal of the appeal against the acquittal of DPM Zahid Hamidi?
In Malaysia, even decisions of the Prime Minister, Minister and the Government can be challenged in court? In Judicial Reviews, the courts will REVIEW the decisions made....so, the Public Prosecutor must never be given absolute discretion to do as he/she pleases - shutting out the ability of persons to challenge such decisions - the ability to challenge the correctness of the decision of the Public Prosecutor is of paramount importance...
"The courts have, ever since the origins of judicial review, exerted control over discretion to prevent power from being misused or abused"."The second principal method of controlling the exercise of discretion is relevancy: a decision will be declared ultra vires if it is based upon irrelevant considerations or relevant considerations are not taken into account".
... Unfettered discretion is a contradiction in terms. Every legal power must have legal limits, otherwise there is dictatorship. In particular, it is a stringent requirement that a discretion should be exercised for a proper purpose, and that it should not be exercised unreasonably. In other words, every discretion cannot be free from legal restraint, where it is wrongly exercised, it becomes the duty of the court to intervene. The courts are the only defence of the liberty of the subject against departmental aggression...
Judicial review is a court proceeding in which a judge reviews the lawfulness of a decision or action..Did it follow natural justice rules?Did they exceed their legal authority? Is the decision so irrational that no reasonable authority could have made it (often referred to as Wednesbury unreasonableness)? Did the decision-maker act for an improper purpose, ignore relevant considerations, or fetter their discretion?
No Public Prosecutor shall have the unquestionable power to do as he/she please - suggest that the words ' exercisable at his discretion,' be deleted.
A Public Prosecutor can and must act in accordance to LAW and governing legal principles. Anyone who is not happy with a decision of a Public Prosecutor ought to have the RIGHT to go the Court on a Judicial Review...We cannot have any Public Prosecutor have the capacity to do as he/she please or to 'abuse his/her powers'...there must be a CHECK and Balance.
Should this be included in the Federal Constitution - the right of persons to challenge the decisions of Public Prosecutor in Court? I think it is most important... How else can we ensure that Public Prosecutor does not have UNCHALLENGED absolute power?
'...High Court here has rejected a judicial review application, brought by the Malaysian Bar, to challenge Deputy Prime Minister Datuk Seri Dr Ahmad Zahid Hamidi's discharge not amounting to acquittal (DNAA) in the Yayasan Akalbudi corruption case. Judge Datuk Amarjeet Singh, in his decision on Thursday, said that the Bar did not meet the requirements for a judicial review, and thus rejected the application.... Judge Datuk Amarjeet Singh, in his decision on Thursday, said that the Bar did not meet the requirements for a judicial review, and thus rejected the application. ..In his broad grounds which he read in court on Thursday, Amarjeet said that the exercise of the AG’s power under Section 145 (3) of the Federal Constitution is cloaked with the presumption of legality. Edge, 27/6/2024
The wordings now in the Constitution leads even the Courts to say that the 'exercise of the AG’s power under Section 145 (3) of the Federal Constitution is cloaked with the presumption of legality.
We do not want a Public Prosecutor who can do as he/she pleases, who seems to be more powerful than the King, Parliament, PM, etc > The Public Prosecutor's actions/decision too must be subject to Judicial Review, which can be initiated by any Malaysian because it involves the administration of criminal justice - where every Malaysian is rightfully concerned about 'All persons are equal before the law and entitled to the equal protection of the law.' so, we certainly do not want any Public Prosecutor to ABUSE powers or do wrong - leading to 'selective' non-prosecution, selective discontinuance of criminal cases, selective appeals or withdrawal of appeals, etc > and it is best that every person have the right to go to Courts for the Court consider whether Public Prosecutor's decisions/actions are RIGHT and in accordance to law - to ensure there are no 'abuse of power', unreasonableness, etc...
Let us LOOK at some of the established principles of when a Public Prosecutor can charge a person in Court - only when there is PRIMA FACIE evidence - not before. Hence, go charge when investigation not completed, and still no PRIMA FACIE evidence, the prosecutor is wrong.
The principle is that a person should not be charged in Court until the investigation into the case against him has been completed and there is prima facie evidence to prosecute him of the charge. In other words, a person should not be put in peril of a criminal trial unless the prosecution is able to prove the case against him. To do otherwise is an injustice. The legal principle as to when one should be CHARGED, Arrested and released on Police Bail - The Case of PP v Tan Kim San, judgement of late Supreme Court Judge Harun Mahmud Hashim
Thus, in Criminal Cases, when at the close of prosecution's case, or at the end of trial, the accused is acquitted, based on the above principle, it is reasonable and maybe a MUST for the Public Prosecutor to appeal to the Court of Appeal/Federal Court - who will then be able to ENSURE that the Court that acquitted did not ERR - make a mistake. Court decides, and never should it be the Public Prosecutor withdraw an appeal (eg. the withdrawal of appeal by current AG/PP Dusuki of appeal against High Court decision to acquit)...was the withdrawal of the appeal RIGHT?
Then, after Prosecution had successfully proved PRIMA Facie case against Zahid Hamidi, WHy did the Public Prosecutor DISCONTINUE that criminal trial,...? RIGHT or WRONG?
Justice Collin Lawrence Sequerah ruled on Monday (Jan 24) that the prosecution had proven a prima facie case against the Umno president after a maximum evaluation of the evidence."I call upon the accused to enter his defence on all charges," he said in a brief decision.- Star, 24/1/2022
Why did the Public Prosecutor not challenge Zahid's application to get an ACQUITTAL, noting that he has already been DISCHARGED - no more charges against Zahid...no more criminal trial. Was the Public Prosecutor RIGHT not to oppose Zahid's bid for ACQUITTAL? Note this AG/PP Dusuki may not want to continue with the Criminal Trial but another PP/AG may decide otherwise in the future... ACQUITTAL means never again can charge Zahid for the same offences, even though Prosecution already proved PRIMA FACIE case against Zahid?
The Attorney-General’s Chambers (AGC) did not object to Deputy Prime Minister Ahmad Zahid Hamidi’s application for full acquittal from 47 corruption charges involving Yayasan Akalbudi funds, the Kuala Lumpur High Court heard today. “I was instructed to appear and not object to the application, which is why we did not file any affidavit in reply,” said deputy head of prosecution Badius Zaman Ahmad this morning. - Malaysiakini, 24/2/2026
Then, Article 145B(2) must be DELETED - after the separation of the AG from the PP - the Attorney General should have NO MORE POWER to decide whether criminal prosecution be instituted or NOT - that power now is with the Public Prosecutor, but any decisions of the PP too can be challenged in Court.
On the TENURE of the Attorney General.
It is right that the AG is the government's lawyer and legal adviser, and as such it is only right that the new PM/Government after any General Elections should be able to choose who should be the Attorney General. So, should we provide some SECURITY of tenure to the Attorney General - from date of Appointment until 3 weeks after a new PM and government is formed.
Or do we want, what is happening under PM Anwar Ibrahim, where the current AG is the 3rd AG of this MADANI government?
My FOCUS here is the PUBLIC PROSECUTOR - how he must be INDEPENDENT, with Security of Tenure, and his/her appointment process is also INDEPENDENT ...
The other MAJOR CONCERN is that the Public Prosecutor never should have ABSOLUTE power, that cannot be questioned. It must be clear that any Public Prosecutor's decision/act should be subject to Judicial Review - and that right to commence Judicial Review is given to all persons, and not just narrowly limited to the 'accused' in criminal proceedings.
KUALA LUMPUR (Feb 23): Malaysia on Monday tabled a bill in Parliament, seeking to formally separate the roles of the Attorney General and the Public Prosecutor, a long-promised institutional reform under Prime Minister Datuk Seri Anwar Ibrahim.
Central to the bill, dubbed as Constitution (Amendment) (No.2) Bill 2026, is the introduction of a new Article 145a, which provides that the Yang di-Pertuan Agong shall, in his discretion, appoint a Public Prosecutor for the Federation on the recommendation of the Judicial and Legal Service Commission and after consultation with the Conference of Rulers.
A person qualified for the appointments must be a citizen with at least 10 years’ experience in litigation, and members of Parliament are expressly disqualified from appointment.
The proposed term of office for the Public Prosecutor is seven years, subject to resignation. The bill further provides that the Public Prosecutor may not be removed from office except on the grounds of inability, from infirmity of body or mind, or misconduct or misbehaviour, and only after a tribunal process.
The tribunal must be chaired by a former attorney general and comprise a former public prosecutor, a former chief secretary to the government and not fewer than three former Federal Court judges.
Pending any reference and report by the tribunal, the Yang di-Pertuan Agong may, on the recommendation of the Judicial and Legal Service Commission, suspend the Public Prosecutor from exercising his functions.
The bill further provides that Parliament shall determine the remuneration of the Public Prosecutor, which shall be charged on the Consolidated Fund, and that the remuneration and other terms of office, including pension rights, “shall not be altered to his disadvantage after his appointment”.
Power of Public Prosecutor
According to the explanatory note of the bill, a Public Prosecutor “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”.
Where the personal consent of the Attorney General is required for the institution of criminal action under the Constitution, such consent “shall not be given except with the consent of the Public Prosecutor personally”.
The Public Prosecutor will also have the right of audience in, and shall take precedence over any other person appearing before, any court in the Federation. However, if both the Attorney General and the Public Prosecutor appear in the same court, the Attorney General may take precedence.
In addition, the Public Prosecutor shall be consulted on matters relating to criminal law and criminal procedure and may render advice to the Yang di-Pertuan Agong, the Cabinet or any minister on such matters, as well as discharge functions conferred under the Constitution or any other written law.
Overall, the amendment bill comprises nine clauses and introduces two new Articles — Articles 145a and 145b — alongside consequential amendments to several existing constitutional provisions, including Articles 42, 132, 138, 145 and 160.
Other notable amendments include Article 132 being amended to provide that the offices of the Attorney General and the Public Prosecutor are not part of the public services of the Federation.
Meanwhile Article 138 is amended to restructure the composition of the Judicial and Legal Service Commission, including the addition of the Public Prosecutor, the Solicitor General, and the Chief Judge of the High Court in Malaya and the Chief Judge of the High Court in Sabah and Sarawak as ex officio members.
Transitional period
Upon its coming into operation, the functions of the Public Prosecutor shall continue to be exercised by the Attorney General until a Public Prosecutor is appointed under the amended Constitution.
It also provides that the person holding the office of Attorney General immediately prior to the Act’s commencement shall continue to hold office on terms and conditions not less favourable than those applicable before the Act comes into operation.
The Financial Implications section states that the bill “will involve the Government in extra financial expenditure; the amount of which cannot at present be ascertained”.
Minister in the Prime Minister’s Department (Law and Institutional Reform) Datuk Seri Azalina Othman Said said the second and third readings of the bill will take place during the current parliamentary session. The proposed constitutional amendment requires a two-thirds majority in the Dewan Rakyat to be passed. Edge, 23/2/2026
Rafizi outlined the four proposals that would include Parliament’s formal involvement in the appointment process of the public prosecutor.
KUALA LUMPUR (Feb 24): A group of backbenchers is seeking parliamentary oversight and safeguards in the bill to separate the office of the attorney general and the public prosecutor.
The 10 members of Parliament (MPs), led by Datuk Seri Rafizi Ramli, warned that they may withhold support for the bill that requires support from two-thirds of the Dewan Rakyat as the constitutional amendment should not be made in a “rush and hastily” before consultation.
“Our support for this constitutional amendment...is dependent and subject to the government’s openness to consider these proposals,” Rafizi said at a press conference alongside nine other MPs from PKR.
The remarks come on the heels of the freshly tabled bill that will carve out a separate and distinct public prosecutor’s role and office from the attorney general to fulfil one of the government's long-promised reforms.
The proposed term of office for the public prosecutor is seven years. The attorney general, meanwhile, will continue advising the government on matters of law though legal matters involving criminal law and criminal procedure will fall under the public prosecutor’s purview.
Four demands
On Tuesday (Feb 24), Rafizi outlined the four proposals that would include Parliament’s formal involvement in the appointment process of the public prosecutor. He said there should be a parliamentary confirmation stage on top of the current draft that provides for the Judicial and Legal Service Commission to recommend a candidate.
He suggested that the nominee undergo a public confirmation hearing before a bipartisan parliamentary select committee. “The purpose is to create a layered process so that power is not concentrated in the hands of only a few individuals,” he said.
Only candidates who pass the vetting process should be voted on by the Dewan Rakyat, requiring a majority vote before their names are submitted to the Yang di-Pertuan Agong for appointment, he said.
Rafizi’s group of MPs also proposed that Parliament play a role in the removal process. Under the current draft, only the Judicial and Legal Service Commission may initiate representations for a tribunal to be formed.
Parliament, as the highest body entrusted by the rakyat, should have recourse to initiate removal proceedings, he argued. “It is defective if Parliament has no mechanism to convey the rakyat’s concerns regarding performance, direction or misconduct.”
Four-year term
The backbenchers also said the public prosecutor’s term should be cut to four years instead of the seven years currently suggested in the draft.
“A seven-year term is too long and could make one office overly powerful across multiple governments,” Rafizi said, pointing out that Malaysia had five prime ministers between 2018 and 2022. “In that scenario, the public prosecutor could effectively outlast several elected governments.”
The group also calls for more time to scrutinise the bill as constitutional amendments of such scale should be circulated at least two weeks before debate.
The nine other MPs are Wong Chen (Subang), Lee Chean Chung (Petaling Jaya), S Kesavan (Sg Siput), Onn Abu Bakar (Batu Pahat), Rodziah Ismail (Ampang), Nik Nazmi Nik Ahmad (Setiawangsa), Zahir Hassan (Wangsa Maju), Hassan Karim (Pasir Gudang) and Bakhtiar Wan Chik (Balik Pulau).
For the constitutional amendment to be passed, at least 148 MPs must give their support to the bill.
The bloc of 10 MPs withholding support for the proposed amendment could materially narrow the government’s margin to secure the required two-thirds threshold — particularly if opposition lawmakers from Perikatan Nasional vote against the amendment.
Rafizi urged the Cabinet to consider refining the bill, including referring it to a parliamentary select committee if necessary. “The government loses nothing by taking into account these positions, refining the draft and returning in the next sitting. There is still time,” he said.
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