Minister’s Taskforce and PSSC Proceeding on AG Separation are Welcomed Moves, but PM Must Publicly Declare Timeline for Separation by 2025
The Coalition for Clean and Fair Election (BERSIH) welcomes the establishment of two taskforce to expedite the separation of roles and powers between the attorney-general (AG) and public prosecutor (PP) by the Minister in the Prime Minister’s Department (Law and Institutional Reform) Azalina Othman Said, as well as the proceedings called by William Leong, chairperson of The Parliamentary Special Select Committee (PSSC) on Human Rights, Election and Institutional Reform.
The two taskforces announced by the minister comprise both technical and comparative study taskforces to expediate the constitutional and legal amendments required to separate the AG and PP, while the PSSC proceeding will investigate and call upon the attorney general to explain the withdrawal of charges against Deputy Prime Minister Ahmad Zahid Hamidi in the Yayasan Akalbudi corruption case, the appeal dismissal appeal against former prime minister Najib Abdul Razak and former 1MDB CEO Arul Kanda Kandasamy over alleged tampering of the 1MDB audit report, and the acquittal of former prime minister Muhyiddin Yassin over four abuse of power charges linked to the Jana Wibawa programme.
Nonetheless, we would like to throw the gauntlet on Prime Minister Anwar Ibrahim to publicly declare a timeline for the separation of AG and PP. The Madani government led by Prime Minister Anwar ought to demonstrate its political will by committing to implementing the separation of AG and PP ideally by 2025, which means the appropriate financial allocations must be budgeted for in the Budget 2025, which is likely to be tabled in October 2024 – effectively making this the deadline if the government is serious in implementing the separation in two years or less. As such, the technical taskforce’s one-year timeframe must be reduced to 6-8 months accordingly to expediate the implementation. A refusal to provide a clear deadline will create a public perception that the taskforces are mere diversions to fend off public anger over the DNAA granted to Ahmad Zahid Hamidi last week.
The financial cost of AG-PP separation must not be used as an excuse to delay the process as the public distrust of the judicial process, the Government, and the political system would be much more expensive. We are open to working with both the taskforces and the proceeding, and assist in providing our inputs and sharing best practices. The taskforce on comprehensive study should include representatives from the civil society including Bar Council and academic legal expert. BERSIH has previously commissioned a study on the separation of AG and PP, and the resultant report published by BERSIH recommended the following on the separation of Attorney General and Public Prosecutor:
- In order to shield criminal prosecutions from political influence or other interference, the PP should be a constitutional officer separate from the AG. As the AG is a political appointee without security of tenure, he should cease to hold the office of PP and to be a member of any Service Commission. His authority should extend only to the Federal AG’s Chambers (‘AGC’) and not to the rest of the Legal Service (‘LS’).
- There should be no major changes to the current provisions for the selection and tenure of the AG. The Prime Minister (‘PM’) should have the flexibility to choose the best candidates for the office of AG and for the position of Minister of Law/Justice, and should be able to combine both positions in one individual, as he may judge appropriate. However, Parliament should have the right to require the PM to submit his advice for the approval of a parliamentary committee.
- Whether or not the AG is a member of the Cabinet or of the Legislature, he should attend Cabinet on a regular basis, and should also have the right, like a Cabinet minister, to participate ex officio in the proceedings of both Houses of Parliament. If, however, the AG is appointed Minister of Law/Justice, then he must be a member of one or other House.
- The PP should be appointed by the Yang di-Pertuan Agong (‘YDPA’) upon the recommendation of the appropriate Service Commission, which may after considering the advice of the PM be returned to the Commission once for reconsideration. Parliament should have the right to require the PM, before advising the YDPA, to submit his advice for the approval of a parliamentary committee.
- The PP should be appointed for a single term of eight years, subject to the same maximum retirement age, and with the same security of tenure, as a Federal Court (‘FCt’) judge.
- Parliament, in the exercise of its legislative jurisdiction over criminal law and criminal procedure, should have the power to require the PP to consult with the AG in particular cases, but must not require the PP to act subject to the consent or under the direction or control of any person. The PP should, however, submit an annual report to Parliament and appear in person before parliamentary committees whenever required to answer questions or give evidence.
- Parliament should have the power to authorize specialist agencies (eg, the Malaysian Anti-Corruption Commission (‘MACC’), the Securities Commission, local authorities, etc) to initiate and conduct prosecutions for specific offences within their remit, but the PP should have power, with the permission of the court or of the agency concerned, to take over any prosecution.
We wish the taskforce and the PSSC well in their duties to expediate this important matter. The Rakyat’s trust in the Madani government and our public institutions hang in the balance. Lastly, we ask the Prime Minister: what is your timeline to implement the AG-PP separation?
BERSIH Steering Committee