MAY 4 — We, the undersigned, congratulate the Government for responding positively to the proposal to separate the offices of the Attorney General and the Public Prosecutor. However, we are deeply concerned that the Government’s current proposal under the Constitution (Amendment) (No. 2) Bill 2026 (the Bill) lacks any parliamentary check and balance for what is one of the most significant appointments in Malaysia’s constitutional order.

We wish to express our firm support for the inclusion of parliamentary committee scrutiny over the appointment process of the Public Prosecutor (PP).

The Public Prosecutor’s role requires robust institutional safeguards

The PP holds extraordinary powers, including the sole authority to initiate, conduct, and discontinue criminal prosecutions. Given the scope of this power, and the glaring past evidence of its politicisation, the manner in which the PP is appointed must itself be transparent, merit-based, and shielded from undue influence.

The current Bill proposes to vest the YDPA with discretionary power to appoint the PP on the recommendation of the Judicial and Legal Service Commission (JLSC) and after consulting the Conference of Rulers. It is noteworthy that the JLSC is part of the public services. While we welcome the principle of separation between the roles of Attorney General and Public Prosecutor, the proposed appointment framework risks placing the process entirely beyond meaningful public or parliamentary oversight.

It is our considered position that a constitutional amendment to include parliamentary scrutiny in the appointment of the PP is entirely permissible under the Federal Constitution. Contrary to suggestions that any such involvement would be unconstitutional on the ground of violation of separation of powers, we view that in our Westminster system of responsible government, the Constitution expressly contemplates scrutiny by external institutions, including Parliament, of executive decision-making. Key constitutional provisions support this conclusion:

• Article 39 preserves Parliament’s authority to confer executive functions on other persons by law.
• Articles 40(1) and 40(2) together expressly envision that entities beyond the Cabinet can be authorised to provide binding advice to the YDPA.
• The YDPA’s discretion to appoint a PM under Article 43(2) is subject to the supreme requirement that the PM-to-be must belong to the Dewan Rakyat and must, in the YDPA’s judgement, be “likely to command the confidence of the majority of the members of that house”.
• Article 40(3) provides that federal law may require the YDPA to act after consultation with or on the recommendation of any person or body of persons.
• Article 3(5) permits Parliament to constitute a Council to advise the YDPA in matters relating to Islam.
• In relation to the YDPA’s power to appoint an Election Commission, Article 114(2) enjoins that the YDPA shall have regard to the importance of “securing an Election Commission which enjoys public confidence”.
• The YDPA’s momentous power to proclaim an emergency under Article 150(1) is subject to parliamentary control. Under Article 150(3), a Proclamation must be laid before both Houses and may be annulled by a Resolution of both Houses passed by a simple majority.

These provisions demonstrate that the Constitution does not mandate a closed or exclusively executive decision-making process, including the appointment process for high public office.

Reliance on Semenyih Jaya to block parliamentary scrutiny Is misconceived

Some have argued that parliamentary involvement in the appointment of the Public Prosecutor would be unconstitutional, relying principally on the Federal Court’s decision in Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat [2017] 3 MLJ 561. This argument fundamentally misreads that judgment.

In Semenyih Jaya, the Federal Court struck down statutory provisions that transferred judicial decision-making power to lay assessors, holding that judicial power under Article 121 of the Federal Constitution is vested exclusively and inalienably in the courts. The Court affirmed that the independence of the judiciary forms part of the Constitution’s basic structure and cannot be diluted or reassigned by ordinary legislation.

However, the legal reasoning of Semenyih Jaya is confined strictly to judicial power and the protection of judicial independence. It concerns the relationship between the judiciary and Parliament — it says nothing about executive appointments or the relationship between the Executive and Parliament which is one of conjunction and not strict separation. To invoke Semenyih Jaya as a general constitutional prohibition against Parliament playing any role in appointments to high public office is to distort its legal reasoning beyond recognition. The case does not establish — and the Federal Court did not hold — that Parliament’s role is limited to passing laws or that Parliament’s oversight functions do not extend to scrutiny of public appointments by the Executive.

Indeed, Semenyih Jaya itself reaffirmed that the Constitution embodies substantive principles, including the rule of law, separation of powers, check and balance and democratic accountability, which must be given generous and purposive effect. As stated in the subsequent Federal Court decision of Alma Nudo Atenza v PP & Anor Appeal [2019] 5 CLJ 780 at paras. 70-71, at the core of the doctrine of separation of powers is the need for a check and balance mechanism to avoid the risk of abuse of power. The Executive, Parliament and the Judiciary form a mutual check upon each other by regulating and being regulated by the rest.

These are precisely the principles that support, rather than undermine, the case for parliamentary scrutiny over the appointment of the Public Prosecutor. A correct and complete reading of Semenyih Jaya reinforces, not diminishes, the case for meaningful oversight of this appointment.

A check and balance mechanism is a constitutional imperative

Malaysia’s Constitution adopts a Westminster parliamentary model under a constitutional monarchy, characterised by some elements of fusion of the Executive and Parliament in terms of both composition and powers. It is precisely these elements of fusion that render Parliament’s check-and-balance role and oversight powers over the Executive as essential, a fact that is recognised in the Constitution through provisions such as Article 43(3) that requires Cabinet to be collectively responsible to Parliament.

It should be noted that the Bill does not move the power of appointing the PP away from the Executive — it merely moves the power from the Prime Minister to other sections of the Executive and public service, namely the YDPA and JLSC. Parliamentary scrutiny over the PP appointment is, therefore, not a deviation from our constitutional model but a vital requirement to preserve check and balance over the exercise of this new power.

Without check and balance mechanisms, the Government’s proposal risks placing the appointment of the PP outside both parliamentary and judicial oversight, a situation that may itself be contrary to the basic structure of the Constitution. Democratic accountability, the rule of law, and the separation of powers are foundational constitutional values that must be actively safeguarded, not silently surrendered.

We are not calling for Parliament to appoint the Public Prosecutor

Our constitutional solution is scrutiny without substitution. We are calling for MPs as representatives of the public interest who are directly accountable to the public, to play a meaningful scrutiny role in the appointment process as is done in countries such as Canada, Germany, Switzerland, Kenya, Chile and others, to ensure transparency and compliance with qualification and procedural standards, to distribute accountability across institutions, and to materially reduce the risk of undue influence over the person who will occupy one of the most powerful offices in the Federation.

Our call to Parliament

We call on Members of Parliament, across party lines, to:

• Reject any framing that parliamentary scrutiny in the PP appointment process is unconstitutional — the constitutional and legal basis for such involvement is clear;
• Amend the Bill to include a structured parliamentary scrutiny mechanism as part of the
• appointment process for the Public Prosecutor;
• Ensure that any final model adopted upholds the values of transparency, accountability, and institutional independence; and
• Recognise that insulating the PP appointment from all oversight does not strengthen prosecutorial independence — it undermines it.
• The separation of the Attorney General and the Public Prosecutor represents a historic constitutional moment for Malaysia. We must seize this moment to build institutions that are genuinely independent, truly accountable, and worthy of public trust. A transparent, multi-layered appointment process with parliamentary scrutiny is not a threat to that goal — it is an integral step towards achieving it.

Initiators

Ngeow Chow Ying (Advocate & Solicitor, Convener, Projek SAMA)

Maha Balakrishnan (Parliamentary & Policy Advocacy Specialist)

Endorsements

1. Tan Sri Mohamad Ariff Bin Md Yusof (former Judge of the Court of Appeal and former Speaker of the Dewan Rakyat)

2. Datuk Seri Mohd Hishamudin Bin Md Yunus (former Judge of the Court of Appeal)

3. Emeritus Prof Datuk Dr Shad Saleem Faruqi (former holder of the Tunku Abdul Rahman Chair at UM)

4. Datuk Kuthubul Zaman Bukhari (Advocate & Solicitor, past president of the Malaysian Bar (2003-2005))

5. Datuk Yeoh Yang Poh (Advocate & Solicitor, past president of the Malaysian Bar (2005-2007))

6. Datuk Ambiga Sreenevasan (Advocate & Solicitor, past president of the Malaysian Bar (2007-2009))

7. Ragunath Kesavan (Advocate & Solicitor, past president of the Malaysian Bar (2009-2011))

8. Christopher Leong (Advocate & Solicitor, past president of the Malaysian Bar (2013-2015))

9. Salim Bashir (Advocate & Solicitor, past president of the Malaysian Bar (2020-2021))

10. Datuk Gurdial Singh Nijar (former professor, Advocate & Solicitor)

11. Datuk Seri M. Ramachelvam (Advocate & Solicitor, president HAKAM)

12. Professor Andrew J Harding (legal scholar)

13. Abdul Rashid Ismail (Advocate & Solicitor)

14. Shanmuga Kanesalingam (Advocate & Solicitor)

15. Fahri Azzat (Advocate & Solicitor)

16. Prof Wong Chin Huat (political scientist, Sunway University)

17. Prof Ahmad Fauzi Abdul Hamid (Honorary Professor, School of Distance Education, Universiti Sains Malaysia)

18. Assoc Prof Azmil Mohd Tayeb (political scientist, Universiti Sains Malaysia)

19. Assoc Prof Syaza Shukri (Department of Political Science and Madani Studies, IIUM)

* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.