KUALA LUMPUR - The separation of powers between the Attorney-General (AG) and the public prosecutor will increase public confidence in the transparency of every legal action, especially in criminal cases and prosecutions involving federal, state and local officials.
Political analyst from Universiti Teknologi Malaysia (UTM) Razak Faculty Perdana Centre Dr Mazlan Ali, said if this matter is finalised, it will definitely be able to remove the negative perception of the government’s interference in judiciary matters, as the AG is an individual appointed on the recommendation of the Prime Minister.
"As an individual who acts as a legal adviser to the government or executive body, the role of the AG and the public prosecutor, being played by the same person, must be separated so that there is no more debate and doubt about the government's intervention in court cases, on whether to prosecute cases, suspend prosecution or appeals involving certain cases," he told Bernama.
He was commenting on Prime Minister Datuk Seri Anwar Ibrahim's statement that in principle, the proposal to separate both of the entities is being studied even though it would involve financial implications of RM300 million and that the process was quite complicated and time consuming.
Mazlan said the Prime Minister's statement gave a clear signal that the government is highly committed to implementing the proposed separation of powers in line with the administrative reforms currently being implemented by the Unity Government.
On the need to amend Article 145 of the Federal Constitution before the separation of powers is implemented, the Razak Faculty of Technology and Informatics senior lecturer said this is not an obstacle considering that the Unity Government has the support of 148 MPs, which is over two-thirds majority to approve any amendment if it is brought to Parliament.
"With the seriousness and commitment shown by the Prime Minister and the MPS, I do not see that the amendment to Article 145 would be a problem because with the 148 MPS alone, the government already has enough votes to approve the amendment," he said while citing as an example the Anti Party-Hopping Bill which was passed last year even when the government then did not have the strong support as it is now.
According to Article 145(2) the role of the AG is to advise the Yang di-Pertuan Agong, the Cabinet or any minister, which in other words, basically, the AG's duty is as a legal adviser to the government or executive body, while Article 145(3) provides wide discretionary powers to the AG. Meanwhile, International Islamic University Malaysia (UIAM) Constitutional Law expert, Assoc Prof Dr Khairil Azmin Mokhtar, who shares the same view, said separating the two roles will strengthen the democratic system and improve the rule of law in the country.
Khairil Azmin said that with the separation of roles, the two entities will be able to carry out their duties and responsibilities without having to worry about a conflict of interest, thus ensuring that the prosecution process can be carried out more transparently and independently, especially when the criminal cases involve powerful government officials.
"As an adviser to the government, the AG is considered as a counsel to the government...giving his advice, thoughts or views, all for the good of the government. Here, there will be a conflict of interest when the government is implicated in a crime and is prosecuted, and this can be avoided if the two roles are not fused,” he said.
Khairil Azmin also recommended that the government adopt the separation of functions between the AG and the public prosecutor as practiced in the United Kingdom as a guide, where the AG is chief legal adviser to the Crown but the Crown Prosecution Service (CPS) prosecutes criminal cases that have been investigated. "In this way, conflict of interest will not occur and criminals will be prosecuted without fear or favour,” he added. - BERNAMA