How to separate the powers of AG and public prosecutor

THE Coalition for Clean and Fair Elections (Bersih) has demanded for the separation of powers between the public prosecutor (PP) and the attorney-general (AG) to remove suspicion of political interference in cases involving politicians.

This, the Bersih steering committee said, should be implemented before the next general election. 

But how?

It will take a two-step process, much like the proposal for a recall election law. First, amend the Federal Constitution. Second, enact a federal law to establish the office of Director of Public Prosecutor.

On amendment to the constitution, I propose for a new Clause (3B) in Article 145 which may read as follows:

Federal law may provide for the appointment of persons to exercise the powers of the attorney-general in Clause (3), and such persons shall discharge their functions under the superintendence of the attorney-general.

Given that several lawmakers have submitted their private member’s bill to the Dewan Rakyat in recent months, any takers for the same to amend Article 145?

On a federal law, the UK’s Criminal Justice Act 1987 which establishes the Serious Fraud Office with investigative and prosecutorial powers over serious fraud cases may be looked at. So, too, the Australian Director of Public Prosecutions Act 1983 (DPPA). The DPPA establishes the Office of the Director of Public Prosecutions (ODPP) and sets out the functions and powers of the ODPP, including independent responsibility for carrying out prosecutions for offences against federal laws. Australia, like Malaysia, is a federation. (See Time for independent public prosecutor, MACC with prosecutorial powers)

Perhaps Bersih may commission a work on a draft federal law on a Malaysian ODPP to follow its commissioned report entitled “Reforming the Office of Attorney General and the Judicial & Legal Service in Malaysia”

It may work with the Institute for Democracy and Economic Affairs, which in 2016 published Policy Paper No. 34 entitled “Separating the Attorney General and Public Prosecutor: Enhancing Rule of Law in Malaysia”, making a case for separating the two roles and making recommendations to improve rule of law in the country with regards to the AG and the PP based on best practices abroad. 

What say you? – September 25, 2022.

*Hafiz Hassan 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.

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