Sivarajan A
The government is expected to table constitutional amendments that would enable the separation of powers between the attorney general and the public prosecutor.
The current arrangement – set out in Section 376 of the Criminal Procedure Code (CPC) and Article 145 of the Federal Constitution – has faced heavy criticism, especially when high-profile cases involving political elites have been dropped through a discharge not amounting to acquittal or a discharge amounting to acquittal.
A recent report by Projek Sama found that, out of 28 corruption, criminal breach of trust and money laundering cases involving elected representatives since the 2018 general election, 10 had their charges withdrawn by the prosecution, leading to either a discharge not amounting to acquittal or a discharge amounting to acquittal.
Such incidents have fuelled widespread public scrutiny and distrust of the justice system, with many citing selective prosecution of political opponents and selective impunity for those in power and their allies [Haron FI (2026) Beyond AG-PP Separation: Best Practices from Five Commonwealth Jurisdictions on Prosecutorial Accountability, Projek Sama Consultancy PLT].
Currently, under Section 376(1) of the CPC, the attorney general serves as the public prosecutor and holds control and direction over all criminal prosecutions and proceedings, centralising prosecutorial authority in a single office.
Civil society organisations and the legal fraternity have therefore been demanding that the Anwar Ibrahim administration fulfil its promise to reform prosecutorial powers by separating the attorney general’s institution into two distinct entities: the attorney general’s office and a public prosecutor’s office.
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Yet proponents of this move feel that separation alone is insufficient, as it fails to establish a genuinely independent prosecutorial body equipped with robust transparency and accountability mechanisms.
To meet these aspirations, the following recommendations are suggested:
- Establish a multi-layered appointment process for the public prosecutor with parliamentary oversight
- Enact an enabling act
- Specify the relationship between the attorney general and the public prosecutor
- Institute a code of conduct for the public prosecutor
- Establish public prosecutor accountability to Parliament
- Set up a separate prosecutorial service commission to govern the appointments, promotions, transfers and discipline of all federal prosecutors – without executive influence.
It is widely perceived that these reforms would prevent executive influence from getting political elites off the hook, especially in cases where a prima facie case has been established and the defence has been called.
What does this mean?
But how do these reforms benefit the common person? As Bersih put it, the prosecuting authority must not serve the government of the day, but serve the public interest, the Constitution and the demands of justice.
About RM277bn has been lost nationally due to corruption between 2018 and 2023, according to the Malaysian Anti-Corruption Commission (MACC). These funds could have built much-needed hospitals, schools and other infrastructure for the people.
As one measure of the scale of loss, the estimated RM9bn figure associated with Najib Razak’s cases could have funded either 93 new hospitals or 34 new hospital blocks.
The right to speak out
Beyond corruption, activists are concerned about the use of the criminal justice system by the executive to investigate, charge and silence political opponents and those who speak truth to power.
Suaram’s Malaysia Human Rights Report 2025 states that Section 233 of the Communications and Multimedia Act (CMA) was increasingly used to police online expression, reaching an all-time high with 28 charges in 2025 – double the number from the previous year.
The report also notes that criticism against Prime Minister Anwar Ibrahim and Sabah Governor Musa Aman drew greater enforcement of the Sedition Act, with Section 233 (CMA) invoked together with other Penal Code provisions such as Sections 504 and 505.
The year 2025 also saw charges brought against organisers and participants of peaceful assemblies, such as the Gempur Rasuah rallies, where the Sabah Attorney General’s Chambers continued to charge activists even after the prime minister announced proposed amendments to the Peaceful Assembly Act 2012.
The question is whether a truly independent public prosecutor would reduce politically motivated prosecutions.
While activists and opposition figures may still face police intimidation, investigation or arrest during protests, it remains to be seen whether a public prosecutor acting independently from the executive would continue to press politically motivated charges intended to silence dissenting voices, as the final decision on whether to prosecute, amend, continue or withdraw charges lies with the public prosecutor.
An independent public prosecutor should therefore provide the much-needed checks and balances against enforcement authorities’ abuse of power.
Leaving no one behind
Finally, although not directly linked to this reform, the gaps in access to justice – especially for the poor, vulnerable and marginalised – deserve attention.
The right to legal representation enshrined in Article 5, Clause 3 of the Federal Constitution is not fully realised in practice. It is estimated that nearly 80% of accused persons in lower courts appear without representation when charged.
Though legal aid services have been available since 1971 through the Legal Aid Bureau (now the Legal Aid Department under the Legal Affairs Division (BHEUU), the National Legal Aid Foundation (YBGK) established in 2011, and the Bar Council’s legal aid scheme in 1983, many people remain unaware of these services.
A visit to any court on any given day will reveal that many low-income families are still unaware that the foundation exists to help their family members who have been arrested and charged.
The current legal aid framework also excludes vulnerable non-citizens such as migrant workers and refugees. While migrant workers can seek redress in labour courts with the assistance of union officials, refugees remain vulnerable to detention and often fall victim to unscrupulous employers who exploit their precarious, undocumented status.
Reforms to the justice system must therefore look beyond the proposed separation of powers and enhance access to legal representation, so that no one is left behind.
The separation of the attorney general’s and public prosecutor’s powers and roles is long overdue and welcomed.
But we need to argue for a comprehensive reform that addresses all the concerns raised above.
Ending the conflict of interest between these roles is not merely a task to fulfil an electoral promise before the next general election; it is a critically important institutional reform that affects all levels of society.
We must therefore guard against political short-termism – where elected representatives prioritise immediate, visible outcomes over long-term structural change – simply to satisfy electoral expectations and shore up their political legitimacy ahead of the next general election.
Sivarajan A is a central committee member of the socialist party PSM.
The views expressed in Aliran's media statements and the NGO statements we have endorsed reflect Aliran's official stand. Views and opinions expressed in other pieces published here do not necessarily reflect Aliran's official position.
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