JANUARY 11 — “The devil and the angels are in the details” — Nancy Pelosi, former Speaker of the US House of Representatives

I applaud the prime minister’s proposed package of reforms for 2026. They at least signal a desire of the Madani Government to strengthen the rule of law & democratic accountability. 

But Malaysia has had a history of half-hearted headways. Often, Bills sound great in title, but widely drafted exceptions & sub-exceptions in the fine print dilute the very noble aims they seek to achieve. 

Malaysia has had a history of half-hearted headways. Often, Bills sound great in title, but widely drafted exceptions & sub-exceptions in the fine print dilute the very noble aims they seek to achieve. — Picture by Shafwan Zaidon
Malaysia has had a history of half-hearted headways. Often, Bills sound great in title, but widely drafted exceptions & sub-exceptions in the fine print dilute the very noble aims they seek to achieve. — Picture by Shafwan Zaidon

Below are some questions we have to ask to prevent these very-laudable reforms from falling victim to past experiences.

On the proposed separation of the Attorney General & the Public Prosecutor’s powers:

1.    Assuming a new role of Director of Public Prosecutions (“DPP”) like the UK would be created, will a truly independent DPP be selected? If the PM has the ultimate say like other top office bearers (Inspector General of Police, MACC Chief Commissioner, etc.), then the objective of separation is not achieved. Ideally, Parliament should have a say & there is a transparent merit-based selection process. 

2.    Will the DPP have security of tenure? If the PM can remove the DPP at any time for whatever reason, similar to what happened to Attorney General Tan Sri Abdul Gani Patail in 2015, then the DPP cannot be expected to discharge his/her role without fear or favour. The DPP must have security of tenure akin to superior court judges.

3.    Will the government or Attorney General still reserve the power to direct the DPP to decide on certain cases (for example, on sensitive diplomatic cases or top national security matters)? Admittedly, there is no straightforward answer to this, as reflected in the differing approaches globally. 

At the very least, there must be assurances that (a) the government will have no say when it comes to prosecutions involving ministers or MPs, and (b) a written guideline be formulated to govern the Executive-DPP relationship so the roles & expectations are clear to everyone. 

On the proposed Freedom of Information Bill:

1.    Will the Official Secrets Act 1972 (“OSA”) be repealed or amended substantially, so that any Freedom of Information Act (“FOIA”) passed will actually have an impact? 

The OSA & FOIA simply cannot co-exist — one has sweeping provisions which make everything under the sun an “official secret”, while the other promises open disclosure. 

2.    Can government departments reject information requests on conveniently arbitrary grounds like “public order” or “national security”? 

If so, again, any FOIA is toothless. At the very least, the threshold for rejection must be high, and such decisions must be appealable to either an internal appellate board or the courts. 

3.    Will a truly independent, empowered & well-resourced Information Commission be established to enforce the FOIA against government bodies? Without such a commission, there will be great inertia to information requests by government agencies.

On the proposed Ombudsman Bill:

1.    Will the Ombudsman be granted legally binding powers to compel government agencies to co-operate in investigations on government maladministration? In many countries, it is not uncommon for government bodies to refuse to co-operate with the Ombudsman, often with no recourse available.

2.    If the Ombudsman reaches any finding on maladministration, will the relevant government body be compelled to review it, update the Ombudsman on any disciplinary action taken towards the wrongdoer(s) or (if no action is taken) at least provide cogent reasons why no action is taken? 

If there is no legal mechanism to follow through, the Ombudsman’s painstakingly assembled report will only look great on paper. 

3.    Will the Ombudsman be truly independent, so that it can carry out its mandate without fear or favour? 

Again, the selection & removal process discussed earlier for the DPP must be equally applied. 

On the proposed term-limits for the PM:

This reform is relatively straightforward. But it is only one part of a very large equation to reduce Executive overreach at the very top. 

The main problem remains unaddressed: too much concentration of power in the PM’s hands. The 1MDB scandal & the entire series of alleged abuses of power to cover it up happened within the former PM’s second term. 

So the problem is not so much the length of the PM’s tenure, but the untrammelled power that the PM yields during any given period. To start, the government should seriously consider appointments of top civil servants (superior court judges, AG, Inspector General of Police, MACC Chief Commissioner, etc.) to receive Parliamentary oversight or approval, instead of the stroke of one man’s pen. 

I am aware that the relevant ministries have reached out to legal experts, NGOs & other bodies for feedback on these Bills — and that is a commendable thing that should continue. 

I only hope that a final draft of the Bill will be circulated to the public & MPs before they are tabled, so that meaningful feedback can be given in time. 

We deserve truly effective & progressive reforms, instead of the proverbial empty tin can Bills. 

* Lim Wei Jiet is a lawyer.

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