Kuala Lumpur, 12 December 2016 – The Institute for Democracy and Economic Affairs (IDEAS) released a new paper calling for a separate and independent Public Prosecutor. Titled “Separating the Attorney General and Public Prosecutor: Enhancing Rule of Law in Malaysia“, the publication authored by Lim Wei Jiet and Aira Nur Ariana Azhari, explores the possibility of separating the roles of the Attorney General (AG) and the Public Prosecutor (PP) as part of ongoing institutional reforms to strengthen the rule of law in Malaysia.
Commenting on the paper, IDEAS Chief Executive Officer Wan Saiful Wan Jan said, “When Tan Sri Abdul Gani Patail was removed as the AG during the 1MDB investigations there was huge public outcry. It is important to note that what the public was concerned about was the fact that the Public Prosecutor was replaced during an ongoing investigation. It is not so much about the Attorney General but about the role of the Public Prosecutor. But in our case, these two are confused because the two posts are held by one same person.”
“There has been increased public concern for greater accountability and transparency to ensure that criminal justice is enforced fairly and impartially. However, the combination of the two roles currently causes a lot of problems. The Attorney General is the chief legal adviser to the Government, but he is also the Public Prosecutor who is expected to make decisions on whether or not to prosecute a case including when it involves the government. This creates a conflict of interest. How can the defense lawyer also holds the power to decide whether or not to prosecute his client?”
“It is not fair on the AG to be burdened with this conflict of interest because it could lead to a situation where people question the integrity of even the most honest and dedicated AG. The person in that job will be able to do no right in the eyes of the public because of this anomaly in our system. This is why we must protect the sanctity of the institution by changing the setup so that two different persons hold the post of AG and Public Prosecutor.”
“Based on our study, we think that the best solution moving forward is to have the AG be a Member of Parliament who is the appointed by the Prime Minister. This is to ensure that he or she is trusted by the Prime Minister and the Cabinet at all time. The AG would also continue to give legal advice to the Government and can be removed by the Prime Minister, like any other cabinet minister. This is only fair as the AG ultimately is the lawyer to a client who is the Government.”
“The Public Prosecutor should be independently appointed to head the Office of the Public Prosecutions and be free to prosecute at his or her discretion. As is the case in the United Kingdom and other Commonwealth countries, the AG should also oversee the Public Prosecutor so that there is accountability in the PP’s decisions. However, the AG should only intervene in cases of national interest or international affairs and there must be clearly defined guidelines on when that is applicable.”
“This way, the AG and PP can both be free to do their jobs to the best of their capabilities, in the interest of the Malaysian people. Some people may say this cannot happen because it requires a constitutional amendment. But our Federal Constitution can indeed be amended. In fact, just last week on 9 December it was announced that the Cabinet has agreed to amend Article about 12 (4) of the Federal Constitution to deal with the issue of child religious conversion. This means amending the Federal Constitution is possible if there is political will,” concluded Wan Saiful.