Selected Commonwealth Jurisdictions with Fused Roles of the Attorney General and Public Prosecutor

Selected Commonwealth Jurisdictions with Fused Roles of the Attorney General and Public Prosecutor

In the following Commonwealth jurisdictions, the roles of the Attorney General and Public Prosecutor are fused.

The Attorney General is the principal legal advisor to the Government, as well as “chief criminal law enforcement officer”[1] “responsible for the prosecution of all criminal offences.”[2]

1. Brunei

Article 81(2) & (3) of The Constitution of Brunei Darussalam

“(2) The Attorney General shall advise on all legal matters connected with the affairs of Brunei Darussalam referred to him by His Majesty the Sultan and Yang Di-Pertuan or by the Government.

(3) The Attorney General shall have power exercisable at his discretion to institute, conduct or discontinue any proceedings for an offence other than …”[3] (Emphasis mine)

2. Malaysia

Article 145(2) & (3) of the Federal Constitution

“(2) It shall be the duty of the Attorney General to advise the Yang di-Pertuan Agong or the Cabinet or any Minister upon such legal matters, and to perform such other duties of a legal character, as may from time to time be referred or assigned to him by the Yang di-Pertuan Agong or the Cabinet, and to discharge the functions conferred on him by or under this Constitution or any other written law.

(3) The Attorney General shall have power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for an offence, other than proceedings before a Syariah court, a native court or a court-martial.”[4] (Emphasis mine)

3. Singapore

Article 35(7) & (8) of the Constitution of the Republic of Singapore

“(7) It shall be the duty of the Attorney-General to advise the Government upon such legal matters and to perform such other duties of a legal character, as may from time to time be referred or assigned to him by the President or the Cabinet and to discharge the functions conferred on him by or under this Constitution or any other written law.

(8) The Attorney‑General shall have power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for any offence.”[5] (Emphasis mine)

4. Sri Lanka

Extract from the website of the Attorney General’s Department[6] of Sri Lanka:

Anomaly: Hong Kong

In Hong Kong, the Department of Justice is in charge of criminal prosecution.

Article 63 of the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China provides that:

“The Department of Justice of the Hong Kong Special Administrative Region shall control criminal prosecutions, free from any interference.”[7]

The Department of Justice is headed by Secretary of Justice,[8] and the latter is appointed by the Central People’s Government on recommendation and nomination of Chief Executive of Hong Kong Special Administrative Region.[9]

Hong Kong’s Prosecution Code 2013 notes that, “the Secretary for Justice is responsible for applying the criminal law, formulating prosecution policy, and superintending the Director of Public Prosecutions and prosecutors in the Prosecutions Division of the Department.”[10]

In terms of practical day-to-day prosecutions, the Director of Public Prosecutions “initiates and conducts the prosecution of cases on behalf of the Hong Kong Special Administrative Region”[11] and “exercise on behalf of the Secretary for Justice the discretion whether or not to bring criminal proceedings in the HKSAR.”[12]


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Commentary on Sundra Rajoo’s Judicial Review Application

On 31st December 2019, former director of the Asian International Arbitration Centre (AIAC), Datuk Prof Dr N. Sundra Rajoo (“Sundra Rajoo”) succeeded in his judicial review application against the decision of the Attorney General’s Chambers (“AGC”) to charge him with three counts of criminal breach of trust[1]  involving over RM1 million belonging to AIAC.[2]

The effect of this decision, until and unless a stay of the High Court’s decision is obtained, is that inter alia the criminal breach of trust case against Sundra Rajoo in the Sessions Court has to come to an end.

Leave to proceed with the judicial review application was initially refused by the High Court on the basis that “the decision of the Attorney General in exercising his discretion to prefer charges against the appellant is not amenable to judicial review.”[3]

On appeal, the Court of Appeal was “of the view that the issues raised by the appellant might on further consideration turn out to be an arguable case in favour of granting the reliefs sought for by the appellant.”[4]

The case was then sent back to the High Court and heard on its merits. It was reported that Yang Arif Dato’ Seri Mariana Yahya held that the Attorney-General (“AG”)’s discretionary power under Article 145 (3) of the Federal Constitution to institute, conduct or discontinue any proceedings for a criminal offence is subject to  judicial review.

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