THE government needs to speed up the undertaken process to separate the duties and powers between the attorney-general (AG) and the public prosecutor (PP). This matter cannot be allowed to be prolonged.

For the last many years, there have been many arising issues pertaining to this matter and we can no longer allow this to continue if we want to increase public trust and confidence towards our legal system.

According to the federal constitution, the highest law in the country, the roles of the attorney-general (AG) and the public prosecutor (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 attorney-general 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 shariah court, a native court or a court-martial”.

According to Article 145 (2) and (3) of the federal constitution as cited above, the attorney-general 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) of the federal constitution sets the tone for the fused roles of the attorney-general and the public prosecutor in our country. The role of the attorney-general as the public prosecutor can be seen further 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 existing power given to attorney-general seems absolute and cannot be questioned by the court of law as clearly observed in the case of Long bin Samat & Ors. v Public Prosecutor [1974] 1 LNS 80 where Tun Mohamed Suffian, then lord president of the Federal Court, interpreted the scope and extent of this power and 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, 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 attorney-general to either prosecute or not prosecute a case. There have been many reported court cases which stresses the similar points which been highlighted from this particular case like the case of Karpal Singh & Anor v Public Prosecutor [1991] 2 MLJ 544, 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 from 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 attorney-general is the legal adviser of the government. On the other hand, the public prosecutor is the principal prosecuting authority in the country.

Conflict of interest might happen at any time if the person being prosecuted happens to be government official. As such, it is crucial for these two offices to be separated immediately without much delay in order to avoid any conflict of interest and reduce mistrust from the public. By separating these two offices, it is highly believed that it can increase the public trust and confidence toward the country’s legal system.

* Muzaffar Syah Mallow is an associate professor at the Faculty of Shariah & Law, Universiti Sains Islam Malaysia.

* 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.