FOR many years – if not decades – there has been this constant criticism against the Malaysian government for not separating the roles and powers of the Attorney-General (AG) and the public prosecutor (PP).
Now there are renewed calls to expedite the separation after the controversial DNNA (discharge not amounting to acquittal) accorded to Deputy Prime Minister Datuk Seri Ahmad Zahid Hamidi on Monday (Sept 4).
In my layman view, the separation of AG and PP roles and authority will not make much difference in Malaysia.
One of the accusations levelled against 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 even if the public is uncertain about the evidence needed to proceed with the 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 would reflect negatively on the AG and his deputy public prosecutors (DPPs). Even in the UK, not all cases referred to the AG are prosecuted with the AG having 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 the case and secure a conviction.
Loopholes
The AG is also often accused of selective prosecution by the opposition front and/or perceived to have a major say in legal and judicial matters to the detriment of fairness and equality.
If the separation of the AG and PP roles were ideal and practical, then all countries will have implemented this dual system which is not the case even in the Commonwealth or globally.
The simple reason is that if the government really wants to exert control or interfere, it can also pressure the PP.
It is a well-known fact that if supposedly former AG Tan Sri Tommy Thomas was sympathetic and favourable to the Pakatan Harapan (PH) government, the same could have been applied to previous AGs who were biased towards the Barisan Nasional (BN) government.
Can anyone prevent these biases in any 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 very strong and deeply entrenched or where the AG or PP 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. Unfortunately, Malaysia does not have these types of institutions while most if not all are its so-called civil servants are in one way or another subservient to the government. So much for the separation of powers!
Let MPs decide
A better alternative probably is to have the AG elected by parliament and not selected by the PM, and subsequently endorsed by the King.
The government and the opposition can then propose qualified candidates whereby after the nominees are vetted by MPs or a parliamentary committee, the choice is put to a secret vote.
Since he has been selected by parliament, the AG 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 exercise will be much better than separating the roles as no good is going to come out of it if the government can pressure the AG or PP.
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 unlike the situation now.
There is no other way to prevent any abuse of the AG’s position than having the AG elected by the MPs and be made answerable and responsible to Parliament which is the ultimate and final authority in the country.
As it is, the AGs neutrality, position and stand have been questioned in many cases concerning influential politicians and leaders as many previous governments have abused the office of the AG for their own ends, thus arousing the suspicion of the people and opposition politicians. – Sept 8, 2023
V. Thomas
Sungai Buloh
The views expressed are solely of the author and do not necessarily reflect those of Focus Malaysia.
