We, the 10 undersigned groups and organisation, call for the amendment of the Federal Constitution to ensure that the attorney general, who is also the public prosecutor, is independent and is provided with security of tenure.
This would be a safeguard to ensure independence and to prevent the prime minister’s ability to appoint and remove as he or she pleases.
The Constitution, in Article 145(1) states:
The Yang di-Pertuan Agong shall, on the advice of the Prime Minister, appoint a person who is qualified to be a judge of the Federal Court to be the Attorney General for the Federation…
This means the king has no choice but to do as the PM advises.
Security of tenure and safeguards for independence in pre-1963 Constitution
The Federal Constitution today also fails to clearly stipulate the retirement age of the attorney general or the procedure for removal.
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The Constitution – prior to the constitutional amendment through Act 10/1960, Section 26, which came into force on 16 September 1963 – stated in Article 145:
(4) Subject to Clause (5), the Attorney General shall hold office until he attains the age of sixty-five years or such later time, not later than six months after he attains that age, as the Yang di-Pertuan Agong may approve.
(5) The Attorney General may at any time resign his office but shall not be removed from office except on the like grounds and in the like manner as a judge of the Federal Court.
That meant, the attorney general before had security of tenure until retirement age, and could not be easily removed or replaced according to the whims and fancies of any sitting prime minister.
Sadly, today the attorney general only holds “office during the pleasure of the Yang di-Pertuan Agong [King]” and the Federal Constitution does not set a tenure or a retirement age.
This means the attorney general can also be removed at any time, and this precarious state of affairs threatens the independence of the attorney general-public prosecutor.
Was the previous attorney general-public prosecutor’s removal questionable?
Dusuki Mokhtar was appointed as the new attorney general of Malaysia from 12 November 2024, stepping in to replace outgoing attorney general Terrirudin Salleh, who had not yet reached his retirement age of 65.
Terrirudin, 56, who served as Malaysia’s attorney general for just slightly more than a year, was appointed attorney general from 6 September 2023. When he was appointed, there was no clear tenure stated – unlike previous attorney generals, who had a clear tenure like two years or more stated at the point of appointment.
Then, on 12 December 2024, the new attorney general-public prosecutor Dusuki discontinued the appeal against Deputy PM Zahid Hamidi’s acquittal of 40 corruption charges in the foreign visa system (VLN) contract.
Note, when the High Court acquitted him on the grounds that the prosecution had failed to prove a prima facie case at the end of the prosecution’s case, there was public pressure that led to the prosecution filing the appeal when Terrirudin was attorney general. Was this a possible reason, why the previous attorney general was replaced ‘suddenly’?
0n 4 September 2023, Zahid’s other case had been discontinued by then attorney general Idrus Harun, after the prosecution had already successfully proved a prima facie case for 47 charges of criminal breach of trust, corruption and money laundering. The reason given then was that the prosecution needed more time to complete investigation on several letters of representation submitted by the accused. These investigations should have been long completed, and the public prosecutor has the power to recharge Zahid for all or some of the 47 charges. Was the previous attorney general Terrirudin removed as he was more likely than not to recharge the current deputy PM?
Power to institute, conduct or discontinue any criminal proceedings
The “power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for an offence” can be ‘abused’ by the government if the public prosecutor is not independent. The public prosecutor has the power to decide to not charge some people, discontinue criminal cases or even withdraw criminal appeals.
After Anwar Ibrahim’s government came into power in November 2022, his ‘political enemies’ seem to be charged a lot in the courts, and members of the parties in government and their associates seem to have their criminal cases dropped or stalled.
Is this an indication of the amount of power or influence, the government of the day may have over the public prosecutor? This reality affects the perception of independence of the Malaysian public prosecutor-attorney general.
Even the PM can commit crime – it is best he does not have the power to remove public prosecutors
With regard to crime, anyone from the prime minister, ministers, politicians and their family members and friends can breach criminal laws. When that happens, the people expect the public prosecutor to act independently and professionally, and charge anyone, including the prime minister, if they commit a crime.
Hence, the prime minister’s role in the appointment or removal of the public prosecutor at least must be extinguished. We do not want any attorney general-public prosecutor to worry about the consequence of not doing what the government wants.
Guidelines on the role of prosecutors, adopted on 7 September 1990 by the eighth UN Congress on the Prevention of Crime and the Treatment of Offenders states:
Prosecutors, as essential agents of the administration of justice, shall at all times maintain the honour and dignity of their profession.
4. States shall ensure that prosecutors are able to perform their professional functions without intimidation, hindrance, harassment, improper interference…’
This reasonably will include intimidation, hindrance, harassment or improper interference from the prime minister or the government of the day.
Days of PM ‘choosing’ public prosecutor must end
In the past, primarily many believed that politicians and the powerful benefited by non-prosecution, in that they do not get charged for crimes. The attorney general-public prosecutor has the power to decide who gets charged, and who does not.
During the time of Prime Minister Najib Razak, public prosecutor Gani Patail was suspected by some to be ‘prematurely removed’ from office because Gani was in the process of preparing for the prosecution of the then sitting prime minister related to the 1MDB issue.
In his place, a new attorney general, Apandi Ali, was appointed, who later went one to publicly declare or imply that Najib was innocent of any crime related to 1MDB.
When the next attorney general, Tommy Thomas, was appointed, Najib was charged and he is now in prison serving his sentence.
That is how some public prosecutors can be so wrong. It is not the role of the attorney general-public prosecutor to determine the guilt – that is the duty of the court after a fair trial.
The era of a possibly government-influenced public prosecutor must end, and the public prosecutor must be free and independent of the state, and focused on the administration of criminal justice without fear or favour.
Those who committed crimes will be charged and accorded a fair trial. No more discontinuation of cases or ‘selective non-prosecution’ of ‘friends’ of the government.
Separating attorney general from public prosecutor
The government rightfully has decided that the attorney general best not also be the public prosecutor – and thus the roles will be separated soon.
The end result hopefully will be that the public prosecutor shall have the power “to institute, conduct or discontinue any proceedings for an offence”. The government will no longer have the power to ‘interfere’.
A perusal of the Malaysian Constitution will show that the attorney general is essentially the ‘government lawyer’, who advises the government and acts for the government, ministers and public officers.
It is indeed difficult for him or her to also be the public prosecutor. This will be complicated especially when the accused (or the person to be charged) is the prime minister, minister or a public officer. An inevitable ‘conflict of interest’ arises.
Hence, it is the right move to have an independent public prosecutor, different from the attorney general.
The public prosecutor certainly must be independent, and the prime minister and the government should have no role in the choosing of the public prosecutor. It is best that the power of advising the king on the appointment of an individual as public prosecutor rests with an independent body or commission.
The person who is appointed must have security of tenure, including a clear retirement age and other safeguards to ensure independence, just like a judge.
On the other hand, the attorney general, who really is the government’s lawyer and legal adviser, could be appointed on the advice of the prime minister or the government of the day. The individual’s tenure can reasonably be ended by a subsequent new prime minister or government, who may desire another person to be the government’s attorney general.
It is noted that Prime Minister Anwar Ibrahim recognised that:
the separation of powers between attorney general and public prosecutor is not merely a division of responsibilities, but a crucial step in preserving the integrity of the office…” It has already been approved by Cabinet, and Anwar said that the Cabinet draft paper on the separation of powers between the Attorney General (AG) and the Public Prosecutor (PP) is expected to be ready by the middle of 2025. – The Sun, 21 December 2024
We hope the needed amendments to the Federal Constitution and relevant laws can be tabled in Parliament soon, and that Malaysia will finally have an independent public prosecutor and an attorney general by the third quarter of 2025.
Thus, we call for the process leading to Malaysia having an independent public prosecutor, different from the attorney general to be expedited;
We call for an end to the days when the perception that the attorney general-public prosecutor’s acts – whether in ‘prosecuting of non-prosecuting’, appealing and withdrawing of appeals, and discontinuation of cases – may be based on the instruction or the will of the prime minister or government of the day.
A prosecution should not derail the court process, through a mid-trial discontinuation of the case. Leave it to the courts to decide after a fair trial whether a person is guilty or not.
If the prosecution loses a criminal trial in the court of first instance, the best practice is to appeal, giving the appellate court the opportunity to consider whether the High Court (or lower court) made an error or not in acquitting an accused.
The appeal is crucial to prevent any miscarriage of justice, and removes any doubts about the independence of the Malaysian courts.
We also call for the right of a judicial review of the decisions of a public prosecutor – just as we already have the right to go for a judicial review of the prime minister or minister’s decisions.
This will allow the court to consider whether the public prosecutor’s decision was illegal, procedurally unfair, irrational or even incompatible with human rights.
This will ensure there is no wrongdoing or abuse of power by the public prosecutor, who represents Malaysia and people of Malaysia in the administration of criminal justice.
Addendum
Article 145 Federal Constitution – Attorney General
(1) The Yang di-Pertuan Agong shall, on the advice of the Prime Minister, appoint a person who is qualified to be a judge of the Federal Court to be the Attorney General for the Federation.
(2) It shall be the duty of the Attorney General to advise the Yang di-Pertuan Agong or the Cabinet or any Minister upon such legal matters, and to perform such other duties of a legal character, as may from time to time be referred or assigned to him by the Yang di-Pertuan Agong or the Cabinet, and to discharge the functions conferred on him by or under this Constitution or any other written law.
(3) 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 Syariah court, a native court or a court-martial.
(3A) Federal law may confer on the Attorney General power to determine the courts in which or the venue at which any proceedings which he has power under Clause (3) to institute shall be instituted or to which such proceedings shall be transferred.
(4) In the performance of his duties the Attorney General shall have the right of audience in, and shall take precedence over any other person appearing before, any court or tribunal in the Federation.
(5) Subject to Clause (6), the Attorney General shall hold office during the pleasure of the Yang di-Pertuan Agong and may at any time resign his office and, unless he is a member of the Cabinet, shall receive such remuneration as the Yang di-Pertuan Agong may determine.
(6) The person holding the office of Attorney General immediately prior to the coming into operation of this Article shall continue to hold the office on terms and conditions not less favourable than those applicable to him immediately before such coming into operation and shall not be removed from office except on the like grounds and in the like manner as a judge of the Federal Court.
NOTES
Article 145 Federal Constitution (before amendment in 1963)
The present Article was substituted by Act 10/1960, Section 26, in force from 16 September 1963. The earlier Article 145 read as follows:
(1) The Yang di-Pertuan Agong shall, after consultation with the Judicial and Legal Service Commission, appoint from among the members of the judicial and legal service an Attorney General, who shall be a person qualified to be a judge of the Federal Court.
(2) The Attorney General shall advise on legal matters referred to him by the Yang di-Pertuan Agong or the Cabinet, and shall have power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for an offence, other than proceedings before a Muslim court, a native court or a court-martial.
(3) The Attorney General shall have the right of audience in, and shall take precedence over any other person appearing before, any court or tribunal.
(4) Subject to Clause (5), the Attorney General shall hold office until he attains the age of sixty-five years or such later time, not later than six months after he attains that age, as the Yang di-Pertuan Agong may approve.
(5) The Attorney General may at any time resign his office but shall not be removed from office except on the like grounds and in the like manner as a judge of the Federal Court.
Charles Hector issued this statement on behalf of the following 10 groups:
- Aliran
- Malaysians Against Death Penalty and Torture (Madpet)
- Center for Orang Asli Concerns (COAC)
- Gindol Initiative for Civil Society Borneo
- Haiti Action Committee
- Parti Rakyat Malaysia (PRM)
- Payday Men’s Network, UK & US
- Redemption Pakistan
- Singapore Anti Death Penalty Campaign (SADPC)
- Workers Hub For Change (WH4C)
- Tegakkan maruah serta kualiti kehidupan rakyat
- Galakkan pembangunan saksama, lestari serta tangani krisis alam sekitar
- Raikan kerencaman dan keterangkuman
- Selamatkan demokrasi dan angkatkan keluhuran undang-undang
- Lawan rasuah dan kronisme
