THE Pakatan Harapan Government has promised many things to reform the system of governance in Malaysia.

One of the critical changes that must take place is the role of the Attorney General (AG).

Calls have been made over the decades for a bifurcation of the function of the AG as the Government’s chief legal adviser and the Public Prosecutor (PP). The Barisan Nasional government has never paid any attention to these calls before because the status quo was to its leaders’ advantage.

It mattered not that the notion of check and balance and doctrine of separation of powers between the Executive, Legislature and Judiciary were illusory. Amending the Federal Constitution to limit judicial power or inserting ouster clauses to oust judicial scrutiny was par for the course under Barisan rule.

Pakatan Harapan went to bat in the 14th General Election promising they would separate the functions of the AG and PP if they won. They did win so they better make good on that promise. The irony of course is that a couple of characters who created the sad state of affairs have returned as ‘reformed’ persons, to make amends to the status of the Rule of Law and the judiciary.

From the time of the Malayan Union (1946-1948), through the period of the Federation of Malaya and until Malaysia was born in 1963, the post was held by career AGs from the colonial service.

The first two local AGs were politicians – Tan Sri Abdul Kadir Yusuf (1963–1977) and Tan Sri Hamzah Abu Samah (1977–1980). Abdul Kadir, however, was Solicitor General first and only became a politician (Law Minister) after he was appointed AG. (He and his wife, Tan Sri Fatimah Hashim, who was already in Umno, was also Welfare Minister, making them the first and only couple in the Cabinet.)

Tan Sri Abu Talib Othman (1980–1993) was the first AG, who was not a member of a political party. He came up through the service, and served as SG before he was appointed AG. Abu Talib says the role of PP was carried out by the SG in the days of political AGs.

“Although the offices of the AG and PP were never separate in theory, the roles were carried out independently with the SG acting as the de facto PP,” he says in an interview.

“When (Selangor Mentri Besar Datuk) Harun Idris was charged with corruption, I assisted Tun Salleh Abas who the SG at the time in the trial,” says Abu Talib, adding that he once prosecuted a Barisan politician in Penang for rape when he was the state legal adviser in the 1970s.

How did we start with a fused ‘profession’?

Former Malaysian Bar Steven Thiru says the current framework, where the roles of the AG and the PP are fused, can be traced back to the drafting of the Malaysian Constitution by the Reid Commission.

According to several legal commentators, the Reid Commission appeared comfortable with the AG carrying out the functions of a PP. They suggested the framers of the Constitution felt that there was a high standard of governance at the time and so they did not foresee the problems the fusion would later cause. The current constitutional role of the AG in Malaysia is spelt out by Article 145 of the Federal Constitution, says retired Court of Appeal judge Datuk Seri Mohd Hishamudin Yunus.

“The AG is the legal adviser to the Government. He represents the Government in court proceedings and drafts laws for the Government for tabling in Parliament. He is very close to the Executive.

“But his role is merely to advise the Government on the legal aspects of the policies or proposed policies. He should refrain from engaging in political debates; and must be neutral in relation to party politics.”

Christopher Leong, former Malaysian Bar president, agrees.

“There’s a clear conflict of interest now. The PP is the custodian of public trust. The AG is the legal adviser to the Government and as PP may find himself having to prosecute the Government or members of the Government.”

“We saw the intersection in the tenure of the present AG Tan Sri Mohd Apandi Ali,” says Steven Thiru, another past president.

“He was not just advising the Government but also defended then Prime Minister Datuk Seri Najib Tun Razak in a matter concerning Najib’s private capacity in the United States’ Department of Justice investigations into 1MDB (1 Malaysia Development Berhad).”

Steven says Malaysia should have an Office of Public Prosecutions and that a career civil servant should be the PP.

“When he exercises his discretion to prosecute, the decision should not be open to review because the accused has the opportunity to defend himself in court and is not denied justice.

“But if he decides not to prosecute, then it must be open to review. If not, we would be denying justice to the victims or their families,” adds Steven.

“This is a crucial piece of reform because there is a clear loss of confidence with an AG wearing two hats. We need to restore public confidence. It is critical to any democracy. We can’t be saddled with questions of integrity.

“On Tuesday, we heard from (former Bar president) Datuk Lim Chee Wee and (USM criminologist Assoc Prof) Dr P. Sundramoorthy, who were part of an MACC panel that reviewed the 1MDB case files, that MACC presented AG with evidence at the end of 2015 that Najib received RM42mil from 1MDB unit SRC International and recommended further investigations but Apandi declined to do so.

“The next day, Norhayati Mohd Ariffin told the Suhakam inquiry looking into the disappearance of her husband Amri Che Mat, Pastor Raymond Koh, Joshua Hilmi and his wife Ruth Sitepu, that a police officer had confessed to her that Amri had been taken by the police.

“Her statement on her police report, which was read out at the inquiry, also claimed the police officer told her that the same team had abducted Pastor Koh for allegedly proselytising Muslims. But if that’s the case how come the authorities charged someone else for allegedly extorting money from Pastor Koh’s son for his release and, for his kidnap?” asks Steven.

Hishamudin stresses that the PP must be divorced from the Executive/Cabinet/Prime Minister: “He must be fully independent.”

He says Malaysia does not have a separate office for a Public Prosecutor (or Director of Public Prosecutions as it is called in some jurisdictions) unlike some Commonwealth countries.”

Hishamudin says several jurisdictions have developed their own models (See Table).

He notes that the AG in India has no power of prosecution but the DPPs in Mauritius and Ireland enjoy security of tenure and “cannot be summarily removed by the Government”.

“The purpose of these developments around the world is essentially to ensure the independence of the prosecution decision-making function from inappropriate political control, direction and influence.”

Ragunath Kesavan, a former Bar president also, says that while splitting the functions of the AG and PP would resolve the question of selective prosecution, a further amendment is necessary to say that the appointment of the PP must be scrutinised by a Parliamentary Select Committee or a special commission.

When deciding the kind of structure that would best suit Malaysia, it is important to consider the pitfalls of the different practices from around the world and foresee what might be a problem for our system, say Aira Nur Ariana Azhari and Lim Wei Jiet.

In their 2016 policy paper for the Institute for Democracy and Economic Affairs titled “Separating the Attorney General and Public Prosecutor: Enhancing the Rule of Law in Malaysia”, they highlight that the strongest path to reform is by amending the Constitution, the Criminal Code and the Interpretation Acts.

“Although this is the most challenging method to achieve change, it is by far the strongest and surest way of separating both roles.”

Hishamudin notes that for a constitutional amendment (to redefine the functions of the AG and establish the separate office of the DPP) to be effected, the government must have the support of two-thirds majority in Parliament.

“Since the amendment is for the betterment of Malaysia’s legal system, the citizens and opposition MPs should support such a move.”