The Malaysian Bar welcomes the Government’s readiness to amend Article 145 of the Federal Constitution to separate the powers between the Attorney General (“AG”) and the public prosecutor. It was reported on 5 November 2020 that the Government is committed to the move to ensure more transparency in our country’s justice system, an idea first mooted in the previous government’s manifesto.
Currently, the roles of both the AG and the public prosecutor are fused. It is the role of the AG to act as a legal adviser to the Government, and the public prosecutor has the duty to prosecute criminal matters.
It is stipulated in Article 145 of the Federal Constitution that the AG shall advise the King or the Cabinet or any Minister upon such legal matters, and to perform duties of a legal character. The AG shall have power, exercisable at his discretion, to institute, conduct or discontinue, any proceedings for an offence.
The separation of powers between the AG and the public prosecutor is absolutely crucial in a democracy like Malaysia. The AG is the highest-ranking public prosecutor, and utmost integrity and independence is required in order to maintain public confidence in our country’s governance.
It is a well-known saying that “justice must not only be done, but must be seen to be done.” The Malaysian Bar feels that it is imperative that an AG be impartial and accountable to the rakyat. It is our stance that the functions of the AG must be separate from that of a public prosecutor to ensure checks and balances in prosecutorial decisions.
We hope that the Government’s decision to amend Article 145 of the Federal Constitution can be implemented efficiently and expeditiously in order to uphold the rule of law without fear or favour, and to safeguard the transparency of our justice system. We call on Members of Parliament from both sides to support this decision wholeheartedly for the benefit of our country.
5 November 2020