FOR many years, there has been this constant criticism of the Malaysian government for not separating the roles and powers of the attorney-general (AG) and the public prosecutor.

Minister in the Prime Minister’s Department (Law and Institutional Reform) Azalina Othman Said said recently that she has initiated the first steps to separating the Attorney-General’s Chambers and the public prosecutor.

In my view, the separation of AG’s and public prosecutor’s roles and powers will not make much difference.

One of the accusations levelled at the AG is that he is not fully independent and will have to listen to the views of the government whether to prosecute or not.

Many feel that the AG is biased when it comes to vested parties.

The AG is often accused of being subservient to political interference, but the public does not know much about the evidence needed to proceed with a case.

The AG is privy to this confidential information resulting from the investigation, which may be the diametrical opposite of public perception of the case.

In recent years, there have been many cases where those charged had gone off scot-free due to lack of solid evidence.

This reflects negatively on the AG and his officers. Even in the United Kingdom, not all cases referred to the AG proceed towards prosecution and the AG has the right to exercise his discretion.

What is really needed in the country is also to have capable and competent investigation and prosecution expertise.

The prosecution service is now becoming more reliant on proficient private-sector lawyers to fight cases and secure a conviction.

The AG is also often accused of selective prosecution by the opposition and perceived to have a major say in legal and judicial matters to the detriment of fairness and equality.

If the separation of the AG’s and public prosecutor’s roles were ideal and practical, then all countries would have implemented this system, which is not the case even in the Commonwealth or globally.

The simple reason is that if the government wants to exert control.

It is a well-known fact that former AG Tommy Thomas was sympathetic and favourable to the Pakatan Harapan government, and so were the previous AGs biased towards the Barisan Nasional government. The current AG was favourable to the Perikatan Nasional government.

Can anyone prevent these biases? What is the point of having a dual system when the AG alone is good enough?

The government can pressure the AG as well as the public prosecutor. The AG, in turn, can also pressure the public prosecutor.

So what difference does it make when the government wants to have its way?

There is no way to stop political interference by the government. This can happen in most democracies, except possibly in advanced countries where the democratic institutions are strong and deeply entrenched and where the AG or the public prosecutor cannot be subservient to the government.

Only strong political and democratic institutions can ensure that the AG makes fair decisions and is neither beholden to the government or any vested interests.

Malaysia, unfortunately, does not have these kinds of institutions as most if not all are subservient to the government. So much for the separation of powers!

A better alternative is to have the AG elected by parliament and not selected by the prime minister, and subsequently endorsed by the king.

The government and opposition can propose qualified candidates and after the nominees are vetted by members of parliament or a parliamentary committee, the choice is put to a secret vote.

The AG, since he has been selected by parliament, will have to attend some parliamentary sessions where MPs can question his decisions and the status of the cases being investigated.

This check-and-balance will be much better than separating the roles.

When the AG knows that he is answerable to parliament and that he will be queried in depth by MPs concerning his decisions, he will be more judicious in his role as the ultimate legal authority.

The government, too, will be more circumspect in pressuring the AG when it knows that the AG will have to answer for his decisions in parliament.

At present, many cases concerning influential politicians and leaders are pending and the AG’s neutrality, position and stand are crucial at this point in time. – December 29, 2022.

* V. Thomas 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.