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The Attorney General As Public Prosecutor in Malaysia: from Quasi-Judicial* to ‘Executive’

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The Attorney General As Public Prosecutor in Malaysia: from Quasi-Judicial* to ‘Executive’ 23 (2) 2015 IIUMLJ 345-381 THE ATTORNEY GENERAL AS PUBLIC PROSECUTOR IN MALAYSIA: FROM QUASI-JUDICIAL* TO ‘EXECUTIVE’ Baharuddeen Abu Bakar**† ABSTRACT The Public Prosecutor (PP), as the chief criminal law enforcement officer, impacts directly on the public; hence the greater concern for his independence and integrity as exemplified by the security of tenure provision in the 1957 Federal Constitution. This article uncompromisingly holds that the Attorney General (AG) being ‘political’, as he is selected by, negotiates his contract with and may be dismissed by the Prime Minister, should be separated from the position of PP and protected from political interference. This article traces the history of the emasculation of the PP from Independence to the present. It looks at the travails of the AG/PP during the Mahathir years. One is bound to ask: how is the PP, who may be expected to enforce the criminal law against ordinary citizens, to do so against the head of government? It is based on statutory provisions and reported cases which involved the independence, powers and duties and security of tenure provisions and parliamentary debates (Hansard). Keywords: attorney general, public prosecutor, quasi-judicial, independence, tenure, UK, Commonwealth and US positions * It describes “a function that resembles a judicial function in that it involves deciding a dispute and ascertaining the facts and any relevant law, but differs in that it depends ultimately on the exercise of an executive discretion rather than the application of law”. Oxford Dictionary of Law, 7th Edn, OUP. **† LL.B Hons (UM); Diploma in Syariah Law and Practice (DSLP) and Master of Comparative Law (MCL) IIUM. Member of the Malayan Bar and retired Advocate and Solicitor. Retired Senior Teaching Fellow, Legal Practice Department, Ahmad Ibrahim Kulliyyah of Laws (AIKOL), IIUM. 346 IIUM LAW JOURNAL VOL. 23 NO. 2, 2015 PEGUAM NEGARA SEBAGAI PENDAKWARAYA DI MALAYSIA: DARIPADA SEPARA KEHAKIMAN KEPADA EKSEKUTIF ABSTRAK Peguam Negara sebagai ketua penguatkuasa undang-undang jenayah, mempunyai kesan secara langsung kepada orang awam; maka adanya kebimbangan yang lebih ke atas kemandirian dan integritinya seperti yang difokuskan oleh peruntukan keselamatan tempoh perlantikannya dalam Perlembagaan 1957. Makalah ini tidak berkompromi dalam menyatakan bahawa Peguam Negara (AG) yang mempunyai kedudukan bersifat politik, kerana di pilih oleh, merundingkan kontraknya dengan dan boleh ditamatkan khidmatnya oleh Perdana Menteri, seharusnya diasingkan daripada kedudukan pendakwaraya dan dilindungi daripada campur tangan politik. Makalah ini mengesan sorotan sejarah tentang pengebirian pendakwaraya daripada kemerdekaan sehingga sekarang. Ia meneliti usaha AG/ Pendakwaraya di zaman Mahathir. Persoalan boleh dikemuka: bagaimana seorang pendakwaraya, yang sudah dijangka untuk menguatkuasa undang-undang jenayah terhadap rakyat biasa, boleh membuat perkara yang sama terhadap seorang ketua kerajaan? Makalah ini berteraskan peruntukan undang- undang bertulis dan kes yang telah diputuskan oleh mahkamah yang merangkumi kemandirian, kuasa dan tanggungjawab dan peruntukan keselamatan tempoh perlantikan, dan debat di Parlimen (Hansard). Kata kunci: peguam negara, pendakwaraya, separa kehakiman, kemandirian, tempoh, kedudukan di United Kingdom, Komanwel dan Amerika Syarikat INTRODUCTION The Malaysian Attorney General has two capacities: he is the Public Prosecutor (AG/PP)1 and is the ‘chief legal advisor ’to the government (AG/LA)2, which function he carries out with the 1 Federal Constitution Art 145 (3). 2 Art 145(2). The Attorney General as Public Prosecutor in Malaysia 347 assistance of the Solicitor General (SG).3 The AG/PP and SG4 are both Law Officers5 with similar functions, powers, and duties6 and they function without splitting their work into mutually exclusive spheres. Any division of work between them is administrative. Any distinction between them is in the AG’s additional function as the PP; the SG does not have the same concurrent functions as the PP; he acts as PP only where the AG is unable to act as the PP.7 The AG as the PP wields considerable power in the criminal justice system and, thereby, over the general public:8 “The Attorney- General shall have power exercisable at his discretion, to institute, conduct or discontinue any proceedings for an offence …” This was the position under the CPC as it applies to all prosecutions under all laws, not just those under the Penal Code (CPC sec 3)9 so the PP has 3 S. 40A(1): “Unless in any written law it is otherwise expressly provided, the Solicitor-General may perform any of the duties and may exercise any of the powers of the Attorney-General.” 4 There is a vast and wide-ranging low-profile work that the SG does for the government as seen in the book by Tan Sri Dato’Haji Mohamed Salleh bin Abas (as he then was) Constitution, Law and Judiciary, Malaysian Law Publishers 1984. 5 Interpretation Acts 1948 and 1967, s. 66 states: “Law officers” means the persons for the time being holding the office of Attorney General and Solicitor General, respectively.” 6 Interpretation Acts 1948 and 1967 sec 39 “(1)Where a written law conferring powers or imposing duties on the Attorney General shall be construed as conferring those powers or imposing duties on both the Attorney General and the Solicitor General.” S. 39(2) “A delegation of functions to the Attorney General shall be deemed to be a delegation to both the Attorney General and the Solicitor General.” s. 40A Interpretation and General Clauses Ordinance 1948; “(2) Where the Yang di-Pertuan Agong or any other person has awfully delegated his powers to the Attorney General such delegation shall, unless otherwise expressly provided, be deemed to be delegation of powers to the Attorney General and the Solicitor General.” 7 Criminal Procedure Code (CPC), s 376(2). 8 Sec. 380, CPC The right of a person to initiate a private prosecution for an offence against his person or his property is maintained. 9 Sec. 3, CPC: “All offences under the Penal Code shall be inquired into and tried according to the provisions hereinafter contained, and all offences under any other law shall be inquired into and tried according to the same provisions; subject however to any written law for the time being in force regulating the manner or place of inquiring into or trying such offences.” The Dangerous Drugs Act 1952, the Internal Security Act 1960 and the Essential (Security Cases) Regulations 1975 are examples of criminal laws with specific provisions with respect to certain aspects of criminal procedure. 348 IIUM LAW JOURNAL VOL. 23 NO. 2, 2015 exclusive control over all prosecutions; as mentioned under s.376 (1) of the CPC. And this power has been enhanced recently. The CPC was amended10 to give the AG/PP the power to certify that cases (not necessarily offences of a category) ordinarily heard by the subordinate court should be heard by the High Court.11 The constitutionality of the amendment was challenged as an encroachment on ‘judicial power.’ When the decision, Dato’ Yap Peng v PP,12 went against him, Tun Dr Mohamed Mahathir (hereafter Dr Mahathir), the Prime Minister then, moved with alacrity to amend not just the AG/PP provisions of the Constitution, which may have sufficed, but removed ‘judicial power’13 altogether from the courts! This response can only be taken as a measure of how much the (political) Executive or, at any rate, Dr Mahathir, set store by the powers of the AG/PP. THE REID CONSTITUTION The Reid Commission’s constitutional proposals (the Reid Constitution)14 saw some serious deliberations about the office of AG. The Reid Commission explained its conception thus:15 In Commonwealth countries “the Attorney General exercises the professional functions of giving independent legal advice to the government, representing the government in the courts”, “ and perhaps16 assuming responsibility for public prosecution”. 10 Art.145(3A) “Federal law may confer on the Attorney General power to determine the courts in which or the venue at which any proceedings which he has power under clause (3) to institute shall be instituted or to which such proceedings shall be transferred”; and Sec418A Criminal Procedure Code. 11 The accused is effectively denied one level of appeal, from the subordinate court to the High Court. 12 [1987]2 MLJ 311. 13 Art 121(1) now reads: “….(T) he High Courts and inferior courts shall have such jurisdiction and powers as may be conferred by or under federal law.” The article, before the amendment, read: “The judicial power of the federation shall be vested in” (the two High Courts). Judicial power was unqualified. 14 The Report of the Federation of Malaya Constitutional Commission 1957 General Introduction, para 3; HMSO, London, Colonial no 330. 15 The tabulation is mine. 16 The Reid Commission does not seem convinced about the desirability of this. The Attorney General as Public Prosecutor in Malaysia 349 The Reid Commission noted that: “it is significant that India, Pakistan and Ceylon have all preferred the non-political Attorney General,” while “the political functions normally exercised by a political Attorney General are exercised by a Minister of Justice or Minister of Law.” The Commission also noted that in terms of qualifications: the AG shall be a person who is qualified to be a judge of the Supreme Court. Finally, the Reid Commission had a look at the UK position and made a significant comment: In the United Kingdom the political and the professional functions of the Law Officers are conveniently kept distinct and the latter are not regarded as within the jurisdiction of the Cabinet. What is even more significantly, as events proved soon after, the Commission added that: “It would be difficult to keep the functions distinct in a country exercising responsible government for the first time”. The Reid constitutional proposals were then considered again at a 1957 London Conference, resulting in a White Paper.
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