How to make Malaysia’s prosecution reform work

Civil society organisations and legal experts acknowledge the government’s strong commitments to proceed with the separation of powers between the attorney general and the public prosecutor, with legislation now expected to be tabled this year.

However, the credibility of this reform will be measured by whether it delivers genuine prosecutorial independence. Separating legal advisory functions from criminal prosecution is a fundamental institutional safeguard against political interference, conflicts of interest and selective justice, and it is not a procedural adjustment.

To ensure that the reform meaningfully strengthens the rule of law, we set out the following recommendations for the government’s serious consideration.

General principles

Under the current framework, the attorney general – who is appointed directly on the prime minister’s advice – holds the role of the public prosecutors ex officio. The attorney general is constitutionally granted almost absolute discretion to initiate, conduct and discontinue criminal proceedings.

This creates a significant risk of executive interference in the decision-making process for prosecutions, which we have seen previously when then attorney general Gani Patail was removed under Najib Razak’s administration [amid widely reported allegations that his removal was connected to] a special task force [he chaired] probing allegations surrounding the 1MDB scandal.

A prosecuting authority must not serve the government of the day. It must serve the public interest, the Constitution and the demands of justice. These matters supersede political ebbs and flows.

It is for this reason that the new public prosecutor’s office must not also be appointed according to the prime minister’s discretion. The most crucial element for this reform to be meaningful is the independence of the public prosecutor from the executive. The public prosecutor must be immune from the risk of executive interference in the execution of his or her duties to ensure all prosecutions are conducted in the interest of justice.

We have seen over the past few years how prosecutorial discretion and conduct has led to questionable decisions in criminal cases involving political figures.

Furthermore, now with the government’s stated intention to introduce deferred prosecution agreements for corruption cases to be resolved without trial before courts, the risk of executive interference in prosecutorial decisions becomes even more concerning – with government allies potentially getting off scot-free for their crimes.

The creation of a new public prosecutor position will vest or transfer vast power into the hands of an unelected individual who, for important reasons, should not be directly accountable to the executive branch.

However, to safeguard against any misuse of the public prosecutor’s power, there must be statutorily mandated transparency and accountability mechanisms regarding the exercise of prosecutorial powers and duties that must include proactive and timely parliamentary oversight.

The separation of the role of attorney general and public prosecutor must be conditional on transparency and accountability mechanisms being in place.

In the light of the circumstances outlined above, there is an urgent and compelling need for the separation of powers between the attorney general and the public prosecutor.

A separate prosecutorial service commission

Currently, there is one national commission that controls both the judicial service and the legal service.

However, when a new post of public prosecutor is created to head a prosecutorial service, it should come under its own, separate prosecutorial service commission to safeguard the independence and non-interference between the country’s prosecution and both the executive branch and the judicial branch.

Such a decoupling and separation of control is necessary if we want the public to have confidence that the commission that controls the appointment and employment of prosecutors (who are given extensive power to conduct criminal prosecutions in this country) will be independent from the executive, including from the public service, who are occasionally the subject of criminal investigations and prosecutions.

This is important to eliminate the public perception that members of the government or other sectors of the public service can influence the prosecutorial service.

At the same time, the decoupling of the judicial service from the prosecutorial service will ensure that the new public prosecutor himself will not be in a position to interfere with the appointments of magistrates, sessions court judges and registrars who serve in the court system.

Therefore, we believe it is of paramount importance that no member of the executive branch or of the public service should be members of the proposed prosecutorial service commission, except the sitting public prosecutor in his or her role as head of the prosecutorial service.

Authority and independence of the public prosecutor

The proposed public prosecutor is envisioned to assume full constitutional and statutory authority over all prosecutorial functions in Malaysia, including the power to initiate, conduct and discontinue criminal proceedings under federal and state enactments, except in Sharia courts, native courts and court martials.

Operating as an independent office separate from the attorney general, the public prosecutor will be required to discharge duties impartially and free from political influence or executive interference, guided by statutorily mandated powers, duties and codes of practice.

The enabling act must establish the primary duties and conditions of service for the prosecutorial service, mandate the issuance of prosecutorial guidelines, a code of conduct, and a code of ethics (with the latter also constitutionally entrenched in the Federal Constitution), and require guidelines governing the attorney general-public prosecutor relationship – all of which must be published in the Gazette, tabled in Parliament, and legally binding on the public prosecutor and prosecutorial service members.

While empowered to act autonomously, the public prosecutor must consult the attorney general only in exceptional cases involving national security.

However, the attorney general’s advice must be provided in writing, and the public prosecutor is not obligated to follow it.

This limited consultation role of the attorney general must be clearly defined and prescribed in the Constitution or legislation, with the operational relationship between the two offices formalised through statutory guidelines that are published in the Gazette and tabled in Parliament.

The public prosecutor will also assume responsibilities currently held by the attorney general, such as providing written opinions to pardons boards.

Appointment

The public prosecutor is to be appointed by the Agong on the advice of the new prosecutorial service commission.

To strengthen the system of checks and balances, the new prosecutorial service commission proposes a list of candidates (not fewer than three and not more than five names) to a select committee of the House of Representatives.

Following a vetting and review process, the select committee nominates a candidate to the Agong for his approval.

Tenure, resignation dan removal

The public prosecutor must serve for a term of seven years (no option for renewal), with a retirement age identical to that of a Federal Court judge (currently 66 years old with a non-mandatory extension of six months).

The public prosecutor may at any time resign from his office.

The public prosecutor may be removed from office for cause (ie violating the code of ethics, inability) but only on like grounds and in the like manner as a judge of the Federal Court (ie by a constitutionally established tribunal of peers).

With regard to the process of removing a public prosecutor for cause, the new prosecutorial service commission should be empowered to nominate the tribunal members for the Agong’s approval (which advice he must consider under Article 40(1A)). The PM and the attorney general should not play any role in the process.

Transparency and accountability

While it is vital that the public prosecutor must be empowered to act independently and free from interference, it is also vital to ensure that the public prosecutor himself will not misuse his power and that the prosecutorial services will be administered according to the law.

Therefore, the public prosecutor and prosecutorial service must be required to be transparent about their prosecutorial policies, and must be accountable to Parliament over the exercise of their powers and functions and their administrative operations.

We recommend (among others) that:

• The rules and processes governing the conduct and practice of prosecutions must be codified and made public
• The public prosecutor should be required to submit annual reports to Parliament
• The public prosecutor must appear before parliamentary committees when called to respond to questions on prosecutorial policy and performance, and the administration of the prosecutorial service. For this purpose, a permanent select committee of the House of Representatives should be given specific oversight powers to scrutinise the discharge of the powers and functions of the public prosecutor and his or her office. However, the select committee must not have the power to compel the public prosecutor to prosecute, discontinue prosecutions, withdraw charges or reconsider its prosecutorial decisions. It is also advisable that the committee is chaired by an opposition MP.

To safeguard these transparency and accountability mechanisms, they must be clearly stated in the enabling act, in codes and regulations governing the prosecutorial service, and in the standing orders of the House of Representatives (where required).

Functions and accountability of attorney general

Upon separation of the two offices, the attorney general is to play a politico-legal role. In this dual role, the attorney general must balance the best interests of the government and the best interests of the state.

The attorney general will be an appointee of the government of the day (specifically, the sitting prime minister). He acts as the legal advisor to the federal government and on behalf of the federal government in domestic non-criminal cases. He represents the state in international dispute mechanism forums and advises and represents the Agong on undertakings in an official capacity.

The attorney general should retain only a minimal and constitutionally and legally prescribed role to be consulted by the public prosecutor in exceptional prosecutorial cases involving matters of national security. But the public prosecutor need not act on the attorney general’s advice from that consultation.

In terms of transparency and accountability, the same mechanisms applicable to any minister should extend to the attorney general and include proactive and timely parliamentary oversight. – Rasuah Busters/Sinar

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