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Tuesday, May 15, 2018

On The Attorney General

There are calls for a non-political Attorney General. 

If the Attorney General were only the Public Prosecutor, this would make sense. You would want the person vested with the power and discretion to prosecute to be wholly free from influence. 

However, the Federal Constitution says that the Attorney General is also the Public Prosecutor, and thus serves the dual function of both being the legal advisor to, and the representative of, the Government as well as the Public Prosecutor.

It is for this reason that the Federal Constitution allows for the appointment of a Member of Parliament to be the Attorney General, who may even be appointed as a member of the Cabinet (see Article138(2) and Article 145). In this way, the Attorney General can be made accountable to Parliament.

This is a vital dimension of the discussion and should not be overlooked. This accountability would extend to the role of the Attorney General as Public Prosecutor.  Decisions made in that latter capacity could also be reviewed and scrutinised in Parliament.

I appreciate, however, that there is basis for concern as to the potential for political influence to creep into the sphere of prosecutorial discretion. That concern can only be completely addressed by a constitutional amendment that separates the office of the Attorney General from that of the Public Prosecutor. 

That is something, as I understand it, the Pakatan Harapan is committed to doing. It however requires steps to be taken, Apart from the constitutional amendment, it would be necessary, amongst other things, to establish a separate body akin to the Crown Prosecution Service in England, the reassigning of officers of the Attorney General’s Chambers to that new body, the amendment of criminal laws to provide for this fundamental change.

Such steps must also be taken in tandem with the other reforms the Pakatan Harapan says it will introduce, in particular the reshaping of the Malaysian Anti-Corruption Commission into an independent body accountable to Parliament. If this is taken to the fullest, it could possibly involve the head of that agency also being given an independent power to prosecute.

To put this into play, there is a need for continued political will for such change. The new Attorney General must be someone who can see to it that the Pakatan Harapan does not lose steam on the subject or, for other reasons, retract its position on the commitment. An Attorney General who is a Member of Parliament and in the Pakatan Harapan would be able to do that more effectively than an outsider.  The candidate for Attorney General must however be someone who is seen as committed to this change and who is capable of delivering it.

In the meanwhile, there are ways in which any lingering concerns about political influence on prosecutorial discretion can be addressed temporarily. The Attorney General could seek to exclude himself from decisions to prosecute or not by delegating the functions of the Public Prosecutor to the Solicitor General. Should the need arise, a lawyer from private practice could be contracted as the Solicitor General for that purpose. Additionally, independent oversight committees could be established to oversee decisions made. And, the Attorney General could be asked to prepare reports for Parliament. For this purpose, if necessary, an Administration Of Justice Act could be enacted.

The office of the Attorney General is pivotal to the reforms in the administration of justice that the Pakatan Harapan has committed to. Whoever fills that position must not only be a person recognised for integrity and principle, but also to the Rule of Law and the highest standards of the due administration of justice.

He or she must also be committed to those reforms and must be able to drive the process through to completion, working both with the Government and other stakeholders. This calls for an understanding of the processes involved in the administration of justice as a whole, and in the civil and criminal justice systems. That person must also be able to work with the officers of the Attorney General’s Chambers, who in turn should be able to relate to him or her. Internal resistance would undermine any efforts to introduce reforms.

Ultimately though, that person must be accountable to Parliament from the outset.


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