by Joshua Wu Kai-Ming | Dec 7, 2022 | Law, Politics
For the purposes of the 15th General Elections (“GE15”), the Pakatan Harapan coalition launched the Harapan Action Plan (“HAP”).[1]
At page 40 of the HAP, the Pakatan Harapan coalition outlined that it intends to separate the roles and responsibilities of the Public Prosecutor from the Attorney General (“the Separation”):
The Separation is not a novel one as it was mooted in Pakatan Harapan’s manifesto for the 14th General Elections.[2]
Unfortunately, despite being successful in the 14th General Elections, the Separation did not materialise during the Pakatan Harapan coalition’s 22 months in power.[3]
In fact, there was controversy surrounding some of the prosecutorial decisions made when Tan Sri Tommy Thomas (Pakatan Harapan coalition’s choice for Attorney General)[4] was the Attorney General.[5]
Post-GE15, Dato’ Seri Anwar bin Ibrahim (Pakatan Harapan’s GE15 candidate for Prime Minister) has been sworn in as the 10th Prime Minister of Malaysia[6] and the current Federal Government is in effect a Pakatan Harapan coalition-led government.
It is now time for Pakatan Harapan to fulfill its plans in the HAP. One of the major institutional reforms planned in the HAP is the Separation.
Some possible models for implementing the Separation can be gleaned from Commonwealth jurisdictions such as Bangladesh, India, Jamaica, and Kenya.[7]
Legally, the Separation would require a constitutional amendment to inter alia Article 145 of the Federal Constitution.[8]
Such a constitutional amendment would require two third majority as per Article 159(3) of the Federal Constitution.[9]
The current Federal Government, led by Dato’ Seri Anwar bin Ibrahim, at the time of writing, appears to have two third majority support in the Dewan Rakyat (lower house of Parliament).[10]
The Pakatan Harapan coalition thus has a golden opportunity to bring about major institutional reform by passing a constitutional amendment act to implement the Separation.
Post-Script: Dato’ Sri Azalina binti Othman Said, the Minister in the Prime Minister’s Department (Law and Institutional Reform), announced on 7th December 2022 that the first steps for the Separation have been taken. [11]
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by Joshua Wu Kai-Ming | Sep 7, 2022 | Law
In Datuk Zaid bin Ibrahim’s recent interview on Astro Awani,[1] he mentions a number of times that the Attorney General’s discretion is absolute.[2]
Article 145(3) of the Federal Constitution is of relevance:
“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” (Emphasis mine)
The topic of the Attorney General’s discretion was the subject of my conference paper, which was subsequently published in a journal.[3]
The paper traced the courts’ historical position on the reviewability of the exercise of the Attorney General’s discretion.
Up until Peguam Negara Malaysia v Chin Chee Kow (as secretary of Persatuan Kebajikan dan Amal Liam Hood Thong Chor Seng Thuan) and another appeal [2019] 4 CLJ 561 [“Chin Chee Kow”], the apex courts of Malaysia consistently held that the Attorney General’s discretion is absolute or unfettered.[4]
In Chin Chee Kow, the Federal Court agreed with the Court of Appeal’s view that:
(a) the Attorney General only had absolute discretion in criminal matters;[5] and
(b) in non-criminal matters, the Attorney General did not have absolute or unfettered discretion.[6]
This began the departure from years of established precedent on the Attorney General’s discretion.
When it came to Sundra Rajoo a/l Nadarajah v Menteri Luar Negeri, Malaysia & Ors [2021] 5 MLJ 209 (“Sundra Rajoo“), the Federal Court went even further than Chin Chee Kow and held that the Attorney General’s exercise of discretion would be subject to judicial review in appropriate circumstances.[7]
This, in effect, meant that even in criminal matters, the Attorney General no longer has absolute or unfettered discretion.
The current legal position is that the Attorney General has wide discretion.
However, post Chin Chee Kow and Sundra Rajoo, it would no longer be correct to say that the Attorney General has absolute or unfettered discretion.
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by Joshua Wu Kai-Ming | Aug 9, 2022 | Law
In the following Commonwealth jurisdictions, the roles of the Attorney General and Public Prosecutor (or its equivalent) are fully separated into different offices.
Selected Commonwealth jurisdictions where the roles are fused instead, are considered in a previous article.[1]
A. BANGLADESH
The Government appoints Public Prosecutors who are in charge of criminal prosecution
Section 492(1) of the Code of Criminal Procedure, 1898 provides:
“The Government may appoint, generally, or in any case, or for any specified class of cases, in any local area, one or more officers to be called Public Prosecutors.”[2]
Public Prosecutors can only withdraw prosecutions with the consent of the Court
Section 494 of the Code of Criminal Procedure, 1898 states:
“Any Public Prosecutor may, with the consent of the Court, before the judgment is pronounced, withdraw from the prosecution of any person either generally or in respect of any one or more of the offences for which he is tried …”[3] (Emphasis mine)
This acts as a check and balance mechanism.
The Attorney General is the legal advisor to the Government
The website of the Law and Justice Division of the Ministry of Law, Justice and Parliamentary Affairs of Bangladesh mentions the following:
The President appoints the Attorney General
Article 64 of the Constitution of the People’s Republic of Bangladesh specifies that:
“The President shall appoint a person who is qualified to be appointed as a Judge of the Supreme Court to be Attorney-General for Bangladesh.”[4]
B. INDIA
The Public Prosecutor is in charge of criminal prosecutions
Section 24(1) of the Code of Criminal Procedure 1973 provides:
“For every High Court, the Central Government or the State Government shall, after consultation with the High Court, appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors, for conducting in such Court, any prosecution, appeal or other proceeding on behalf of the Central Government or State Government, as the case may be.”[5] (Emphasis mine)
The Central/State Government(s), after consultation with the High Court, appoint the Public Prosecutor
See Section 24(1) of the Code of Criminal Procedure 1973 above.
This acts as a check and balance mechanism.
Public Prosecutors can only withdraw prosecutions with the consent of the Court
Section 321 of the Code of Criminal Procedure 1973 states:
“The Public Prosecutor or Assistant Public Prosecutor in charge of a case may, with the consent of the Court, at any time before the judgment is pronounced, withdraw from the prosecution of any person either generally or in respect of any one or more of the offences for which he is tried …”[6] (Emphasis mine)
This acts as a check and balance mechanism.
The Attorney General is the legal advisor to the Government
Article 76(2) of the Constitution of India 1950 mentions the following:
“It shall be the duty of the Attorney-General to give advice to the Government of India 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, and to discharge the functions conferred on him by or under this Constitution or any other law for the time being in force.”[7]
The President appoints the Attorney General
Article 76(1) of the Constitution of India 1950 specifies that:
“The President shall appoint a person who is qualified to be appointed a Judge of the Supreme Court to be Attorney-General for India.”[8]
C. JAMAICA
The Director of Public Prosecutions is in charge of criminal prosecutions
Section 94(3) of the Jamaican (Constitution) Order in Council 1962 provides:
“The Director of Public Prosecutions shall have power in any case in which he considers it desirable so to do—
a. to institute and undertake criminal proceedings against any person before any court other than a court-martial in respect of any offence against the law of Jamaica;
b. to take over and continue any such criminal proceedings that may have been instituted by any other person or authority, and
c. to discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by himself or any other person or authority.”[9] (Emphasis mine)
The Governor General appoints the Director of Public Prosecutions
The website of the Office of the Director of Public Prosecutions of Jamaica states:[10]
The Attorney General is the principal legal advisor to the Government
Section 79(1) of the Jamaican (Constitution) Order in Council 1962 mentions the following:
“There shall be an Attorney-General who shall be the principal legal adviser to the Government of Jamaica”[11]
The Governor General, on the advice of the Prime Minister, appoints the Attorney General
Section 79(2) of the Jamaican (Constitution) Order in Council 1962 specifies that:
“Power to appoint a person to hold or act in the office of Attorney-General and to remove from that office a person holding or acting in it shall, subject to subsection (4) of this section, be exercised by the Governor-General acting in accordance with the advice of the Prime Minister”[12]
D. KENYA
The Director of Public Prosecutions is in charge of criminal prosecutions
Article 157(6) of the Constitution of Kenya 2010 provides:
“The Director of Public Prosecutions shall exercise State powers of prosecution and may—
(a) institute and undertake criminal proceedings against any person before any court (other than a court martial) in respect of any offence alleged to have been committed;
(b) take over and continue any criminal proceedings commenced in any court (other than a court martial) that have been instituted or undertaken by another person or authority, with the permission of the person or authority; and
(c) subject to clauses (7) and (8), discontinue at any stage before judgment is delivered any criminal proceedings instituted by the Director of Public Prosecutions or taken over by the Director of Public Prosecutions under paragraph (b).”[13] (Emphasis mine)
The President, on the nomination of the President and the approval of the National Assembly, appoints the Director of Public Prosecution
Article 157(2) of the Constitution of Kenya 2010 states:
“The Director of Public Prosecutions shall be nominated and, with the approval of the National Assembly, appointed by the President”[14] (Emphasis mine)
This acts as a check and balance mechanism.
The Director of Public Prosecutions can only withdraw prosecutions with the permission of the Court
Article 157(8) of the Constitution of Kenya 2010 mentions the following:
“The Director of Public Prosecutions may not discontinue a prosecution without the permission of the court.”[15] (Emphasis mine)
This acts as a check and balance mechanism.
The Attorney General is the principal legal advisor to the Government
Article 156(4) of the Constitution of Kenya 2010 specifies that:
“The Attorney-General—
(a) is the principal legal adviser to the Government;
(b) shall represent the national government in court or in any other legal proceedings to which the national government is a party, other than criminal proceedings; and
(c) shall perform any other functions conferred on the office by an Act of Parliament or by the President.”[16]
The President, on the nomination of the President and the approval of the National Assembly, appoints the Attorney General
Article 156(2) of the Constitution of Kenya 2010 provides:
“The Attorney-General shall be nominated by the President and, with the approval of the National Assembly, appointed by the President.”[17]
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by Joshua Wu Kai-Ming | May 11, 2022 | Law
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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