IMPROVING our legal system should be the prime focus in 2024. There are many areas within our legal system that urgently need improvement, and one of them is the separation of power between the attorney-general (AG) and the public prosecutor (PP). The government needs to expedite the process to separate the duties and powers between the AG and the PP. Many issues have lately arisen pertaining to this matter, and we must address this if we want to increase public trust and confidence in our legal system.

According to the Federal Constitution, the highest law in the country, the roles of the AG and the PP in Malaysia are bonded into one entity. Article 145 (2) of the Federal Constitution stipulates clearly that “It shall be the duty of the AG 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.” At the same time, Article 145 (3) of the Federal Constitution provides that “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.”

According to Article 145(2) and (3) of the Federal Constitution as cited above, the AG acts as the legal adviser to the government and ensures that their actions do not contravene the law. At the same time, he or she is also responsible for the prosecution of individuals except for cases involving shariah, native, or military laws and can even stop any moves to initiate criminal proceedings. Article 145(2) and (3) sets the tone for the fused roles of the AG and the PP. The role of the AG as the PP can be further seen under section 376(1) of the Criminal Procedure Code (CPC), which states “The Attorney General shall be the Public Prosecutor and shall have the control and direction of all criminal prosecutions and proceedings under this Code.”

The power given to the AG seems absolute and cannot be questioned by a court of law, as clearly observed by Mohamed Suffian in the case of Long bin Samat & Ors. v Public Prosecutor (1974) 1 LNS 80. The then Lord President of the Federal Court said: “In our view, this clause from the supreme law clearly gives the Attorney General very wide discretion over the control and direction of all criminal prosecutions. Not only may he institute and conduct any proceedings for an offence, but he may also discontinue criminal proceedings that he has instituted, and the Courts cannot compel him to institute any criminal proceedings which he does not wish to institute or to go on with any criminal proceedings which he has decided to discontinue. Still less then would the Court have power to compel him to enhance a charge when he is content to go on with a charge of a less serious nature. Anyone who is dissatisfied with the Attorney General’s decision not to prosecute, or not to go on with a prosecution or his decision to prefer a charge for a less serious offence when there is evidence of a more serious offence which should be tried in a higher Court should seek his remedy elsewhere, but not in the Courts.” 

This statement is a clear indication to us that the courts had no right to intervene with any decision made by the AG to either to prosecute or not prosecute a case. There have been many reported court cases which stress the similar points highlighted in this particular case like the case of Karpal Singh & Anor v Public Prosecutor (1991) 2 MLJ 544, where the Supreme Court held that “The discretion vested in the Attorney General (pursuant to Article 145(3) of the Federal Constitution) is unfettered and cannot be challenged and substituted by that of the court’s.” Similar points can also be found in the following court cases like the case of Johnson Tan Han Seng v PP (1977) 2 MLJ 66, Poh Cho Ching v PP (1982) 1 MLJ 86, London County Council v Attorney General (1902) AC 165, Peru, Jorge Enrique Pellon Tellon v PP (1998) 4CLJ 278, PP v Lee Tin Bau (1985) 1 MLJ 388, PP v Datuk Harun bin Haji Idris and Ors (1976) 2 MLJ 116, and many others.

However, times have changed. It is important for these two roles to be separated because of the different nature that the two roles play in upholding the rule of law in the country. As stipulated under the Federal Constitution, the AG is the legal adviser to the government. On the other hand, the PP is the principal prosecuting authority in the country. Conflict of interest could happen  if the person being prosecuted happens to be a government official. As such, it is crucial for these two offices to be separated to avoid any conflict of interest and reduce public mistrust. Separation of these two offices can increase public trust and confidence in the legal system. – January 18, 2024.

* Muzaffar Syah Mallow reads The Malaysian Insight.

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.