Bersih 2.0: Time to split up offices of attorney general and public prosecutor

Bersih chairman Thomas Fann said that it was high time for the reform as a number of prominent politicians are facing criminal charges for corruption. — Picture by Choo Choy May
Bersih chairman Thomas Fann said that it was high time for the reform as a number of prominent politicians are facing criminal charges for corruption. — Picture by Choo Choy May

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KUALA LUMPUR, Oct 7 — Electoral watchdog Bersih 2.0 today published a report calling for the immediate separation of the offices of the attorney general (AG) and public prosecutor (PP), to remove political influence from the Malaysian criminal justice system.

During the virtual launch of its report entitled “Reforming the Office of Attorney General and the Judicial and Legal Service in Malaysia”, Bersih chairman Thomas Fann said that it was high time for the reform as a number of prominent politicians are facing criminal charges for corruption.

Separation of attorney general and public prosecutor

The first recommendation touted by the report was that the AG should stop holding the office of the PP, as the AG is a political appointee and does not have security of tenure — making him, along with criminal prosecutions, vulnerable to political and other forms of influence.

The report used as an example the sudden dismissal of the then-AG, Tan Sri Abdul Gani Patail, in 2015, and the actions of his successor, Tan Sri Apandi Ali, in clearing former prime minister Datuk Seri Najib Razak of all criminal offences in relation to the 1MDB scandal at that time.

“In Malaysia, because the AG has the exclusive power to initiate criminal prosecutions, where the AG refuses to bring a prosecution, there is no person or authority that can cause one to be brought,” it said.

The report said that the AG’s authority should only extend to the AG’s Chambers (AGC) and not to the rest of the legal services.

Also suggested was that there should be no major changes to the selection process and tenure of the AG, with the prime minister given the flexibility to choose candidates for the office of AG and law minister, as well as be allowed to combine both roles in one person.

However, it said Parliament should have the right to require the prime minister to submit his recommendation for the AG position for the approval of a parliamentary committee.

It also advocated that the AG 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.

Meanwhile, the report said a PP should be appointed by the Yang di-Pertuan Agong based on the recommendation of “the appropriate service commission”.

Additionally, the Agong could consider the advice of the PM on the PP selection and ask the corresponding commission to reconsider its selection one time.

“Parliament should have the right to require the PM, before advising the Agong, to submit his advice for the approval of a parliamentary committee,” it added.

It suggested that the public prosecutor 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 High Court judge.

In Malaysia, a High Court judge’s tenure lasts to the maximum of the age of 66 and six months, and to remove a judge from office, a tribunal must be appointed by the Yang di-Pertuan Agong to assess if the judge has committed any breaches of code of conduct.

Separation of judicial and legal services

The Bersih 2.0 report also called for the judicial and legal services to be separated, with each having its own commission.

It said the judicial services should include all court registrars, sessions court judges and magistrates, while legal services should include all federal counsel, deputy and assistant PPs and other legal officers.

Currently, all are under the Judicial and Legal Services Commission.

Additionally, the report recommended that although law reform should be under the purview of individual ministries that work together with the Federal AGC, a law reform commission (LRC) consisting of legal academics and retired judges should be created.

The LRC was suggested to be under the oversight of the Ministry of Law, to make proposals for law reform, which should then be laid before Parliament.

The report was commissioned by Bersih 2.0 and written by Andrew Yong — a UK-based Malaysian lawyer — and takes lessons from several other democratic countries including the UK, New Zealand, Australia, Canada and Kenya.

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