Separate AG from prosecutors’ office

Legal eagles call for a constitutional amendment to separate both offices as it creates a conflict of interest.



PETALING JAYA: The Federal Constitution should be amended to separate the Attorney General’s Chambers (AG) from the public prosecutors’ office, said Bar Council president Lim Chee Wee.


Under Article 145 of the Federal Constitution, Lim said the AG had almost absolute power on whether or not to prosecute an alleged criminal.

“Even the courts cannot compel the AG to charge someone if the latter refuses to do so,” he pointed out.
Lim said the AG, while serving as the highest ranking public prosecutor in the country under Section 376(1) of the Criminal Procedure Code, also served as the main legal adviser to the Executive.

“The fused roles may a give rise to conflict of interest, possibly leading to both selective and unfair prosecutions, whether done consciously or not. To remain truly impartial towards the Executive whilst performing duties as a public prosecutor would be a difficult feat for the AG,” he added.

Citing India as an example, Lim said the distinction between the AG and the public prosecutors’ office was cleary defined to remove any perceived biasedness with regard to the conduct of the AG.

“The president there appoints the AG under Article 74 of the Indian Constitution and is the principal legal adviser to the government. But the public prosecutor and his team are appointed by the central or state government under Sections 24 and 25 of the Indian Code of Criminal Procedure 1973,” he said.

‘Make AG answerable to Parliament’

Lawyers for Liberty adviser N Surendran echoed this, saying that as the legal adviser to the Cabinet, there could be a conflict of interest when the AG dealt with day-to-day legal issues in court.

Citing the example of the United Kingdom, Surendran said, the AG had no prosecution powers and was more focused on providing legal advice to the ruling government.

To create check and balance, he said, the AG should also be made answerable to Parliament.

“Currently the law minister answers all queries with regard to the AG. The latter’s position has become a ‘weapon’ for the powers-that-be,” he added.

Surendran also said that the AG should be accorded protection under the law from any abuse from the Executive.

He suggested that the AG be given similar protection as a judge where the latter could only be removed through the formation of a tribunal.

“Currently, the AG is totally under the mercy of the prime minister,” he added.

‘Limit AG’s term’

Transparency International president Paul Low said that currently the AG must comply with the direction given by the government of the day.

“And since the AG is appointed by the government of the day, he may be beholden to them,” he said, suggesting that the AG’s term in office be capped in order to curb the creation of fiefdoms.

“And I agree that he should be made answerable to Parliament,” he added.

While agreeing to the separation of powers, human rights lawyer Edmund Bon however disagreed with imposing a term limit for the AG.

“If the AG is good, I don’t see a problem having him in office for a longer time,” he said.

Constitutional expert Shad Saleem Saleem Faruqi, although agreeing to the separation of powers, stressed that the function of any system would depend on the people managing it.

“Ultimately, it is the integrity of the person holding the position which would determine the quality of the office held,” he said.