PETALING JAYA: The Pakatan Harapan (PH) government must expedite its election promise to separate the roles of the attorney-general (AG) and the public prosecutor (PP) for the sake of transparency and accountability, a lawyer said.
K Shanmuga said Article 145 (3) of the Federal Constitution could be amended to prevent any conflict of interest as currently both positions were held by one individual.
“It is time for the PH government to amend the constitution to pave the way to separate the positions to enable two individuals to be appointed to carry out the different functions,” he told FMT.
Shanmuga said this in response to a High Court ruling yesterday which quashed three charges of misappropriation amounting to RM1 million by former Asian International Arbitration Centre (AIAC) director N Sundra Rajoo.
Judge Mariana Yahaya said the charges could not stand as Sundra Rajoo enjoyed immunity under the International Organisation (Privileges and Immunity) Act from prosecution for acts committed while in office.
The judge also said the discretionary power of the AG cum public prosecutor under Article 145 (3) to institute, conduct or discontinue proceedings for a criminal offence was subject to judicial review now.
“The power of the AG is not absolute but subject to the court’s scrutiny,” she said.
Shanmuga said to his recollection, this was the first time a court had quashed a criminal charge framed by the AG who currently doubled up as the public prosecutor.
This ruling was in line with positions in other Commonwealth jurisdictions, including Singapore, he said.
Shanmuga said it was time for the public prosecutor (PP), who is appointed by the government, to be held accountable for his decisions by the court.
“In the early days, the AG who was also the PP was a minister and was, therefore, accountable to Parliament. The courts were also reluctant to intervene as the people had a remedy through the ballot box,” he added.
PH in its manifesto pledged to separate the responsibilities of the AG from those of the PP.
It said the AG would be appointed from among qualified MPs, and would be a minister acting as legal adviser to the government.
The PP, meanwhile, would be an individual free from political interests with autonomy to carry out prosecutions.
The Malaysian Bar has consistently held that as PP, the AG is required to act independently and impartially, and act as the guardian of public interest, uninfluenced by any political considerations.
It had said the AG was in a position of conflict of interest when politicians from the ruling party were facing the prospect of being prosecuted.