Cap on PM’s term, separation of powers could remain a dream, say legal eagles

Pakatan Harapan pledged, among others, to separate the roles of the attorney-general and public prosecutor.

PETALING JAYA: Legal experts have questioned the likelihood of Pakatan Harapan (PH) fulfilling its pledges to limit the prime minister’s post to two terms and separate the functions of the attorney-general (AG) and public prosecutor, as the coalition nears its one-year mark in Putrajaya.

Speaking to FMT, retired judge Gopal Sri Ram cited the recent failure to amend the constitution to restore Sabah and Sarawak as equal partners with the peninsula.

He said the amendment would have benefitted the two states but that MPs from Barisan Nasional, PAS and Sarawak parties had abstained from voting in the Dewan Rakyat.

This, he said, cast doubt on whether they would support further changes to the supreme law of the land.

He also noted the great influence of the prime minister, AG and public prosecutor once they are appointed by the Yang di-Pertuan Agong.

“Democratic power is with the prime minister while the AG, besides being the chief legal adviser to the government, is also the guardian of public interest in his capacity as public prosecutor,” he said.

In order to separate the two roles, Article 145 of the Federal Constitution as well as some 15 federal laws, including the Criminal Procedure Code, must be amended.

In its manifesto, PH also pledged that the prime minister would not hold other ministerial posts, especially that of finance minister.

However, former Malaysian Bar president Ragunath Kesavan said this would be difficult to implement as the nation practises the Westminster parliamentary democratic system.

“Our prime minister is appointed by the king, who makes a judgment whether an MP commands the confidence of the majority,” he told FMT.

He said under the Malaysian constitutional scheme, the prime minister is a member of the Dewan Rakyat and can be a candidate for the chief political executive provided that he has the majority support of MPs.

“The same MPs could take a vote of no confidence to remove him from that position,” he said, adding that no other country has such a limit on the prime minister’s term.

At best, he said, the constitution can be amended to prevent a former prime minister from contesting a parliamentary seat for more than two terms.

Only in a presidential race can the constitution be amended to limit the term of office, as in the US, he added.

“Voters there elect their president. In Malaysia, a prime minister is first elected as an MP, then appointed with the support of other elected representatives.”

Nonetheless, the Institutional Reform Committee, chaired by retired judge KC Vohrah, backed the separation of powers of the AG and public prosecutor.

The committee, which gathered feedback from stakeholders, said the AG should be appointed from among qualified MPs and be a minister acting as legal adviser to the government.

The public prosecutor, meanwhile, should be an individual free from political interests with the autonomy to carry out prosecutions, it said.

The Malaysian Bar, which represents the interests of 18,000 lawyers in the peninsula, also supported the separation of powers.

Its immediate past president George Varughese said the AG presently plays two distinct roles under the constitution as he is both public prosecutor and principal legal adviser to the government.

“Wearing two hats puts him in an unenviable and arduous position of conflict of interest from time to time, when the interest of his client – the government of the day – may not fully coincide with public interest.”

He added that past experience shows that such situations arise when politicians are prosecuted for criminal offences.

However, the Judicial and Legal Service Officers Association (Jalsoa), which consists of lower court judges, deputy public prosecutors and court registrars, said it wished to obtain feedback on the issue from its members.

Jalsoa president Abdul Razak Musa said survey forms were distributed to some 2,200 members following their recent annual general meeting.