THE government must remove the public prosecutorial role from the attorney-general’s duties to avoid possible conflicts of interest, said lawyers and legal experts.

They said this was also promised by Pakatan Harapan before coming to power.

“Separating the roles is important, because the attorney-general as of now is the chief lawyer for the government, which is the executive. He takes directions from the cabinet,” said former Universiti Malaya law professor Gurdial Singh Nijar.

“Where a cabinet member commits an offence, the attorney-general is placed in a difficult position,” said Gurdial, who is president of the National Human Rights Society (Hakam).

Former private lawyer Tommy Thomas was appointed as the attorney-general on June 6.

The attorney-general is the principal legal adviser to Putrajaya and advises the Yang di-Pertuan Agong, the cabinet, or any minister on legal matters.

The public prosecutor’s role is to institute, conduct, or discontinue proceedings for an offence in civil court.     

Article 145 of the federal constitution assigns the attorney-general with both functions of advising the government and exercising prosecutorial powers.

That combination is reinforced by the Criminal Procedure Code, raising a potential conflict of interest, as exemplified by former attorney-general Apandi Ali exonerating former prime minister Najib Razak of wrongdoing in the 1Malaysia Development Bhd matter in 2016, said Gurdial.

However, the process to separate the roles could be a lengthy process, with some lawyers believing that amendments are necessary to relevant laws to create an office of a director of public prosecution.

Gurdial said the nomination of a public prosecutor can be done by a special committee and be made subject to approval by Parliament.

“The prime minister must have no role in the selection and/or appointment process,” he said.

Constitutional lawyer Surendra Ananth said the the prime minister must then be bound by the decision of the committee when advising the King on the appointment to ensure the independence of the public prosecutor.

“However there should be cooperation and interaction between the attorney-general and the public prosecutor when it comes to matters of criminal justice policies and extradition.”

Separating the roles can never be a disadvantage, said Surendra.

“If done properly, an independent public prosecutor can freely make independent decisions, including against members of the cabinet, without fear of being persecuted.

“If there are merits to a case warranting a criminal charge, an independent public prosecutor can act in a non-selective fashion.

“I do not see how this will be a disadvantage to PH. After all, they promised the separation in their manifesto,” he said.

Upon taking office as the new attorney-general, Thomas said he would push for the separation of the public prosecutor’s office and the functions of the attorney-general.

“The (Malaysian) Bar, of which I’ve just ceased to be a member, has taken that position for decades,” Thomas had said.

“My personal position is consistent with the Bar’s. I’m very happy that the reformative government, which I now serve, has adopted that. We will work towards it.

“I think there is a process which will take some time. I will be guided by the chambers,” he said. – September 30, 2018.