Attorney General Essay

The attorney general is the head of the legal branch of Judicial and Legal Service. He or

she is assisted by the Solicitors General and other legal officers. The office of Attorney General

is established under Art 145 of the FC.

Roles and Functions

There are two roles the AG plays in Malaysia. First, he is the chief legal advisor to the

federal government, ensuring the government acts legally and constitutionally while protecting

public interests. Under Article 145(2), the AG advises the Yang di-Pertuan Agong, the Cabinet,

and ministers on legal matters and performs other legal duties assigned by them.

Secondly, the Attorney General acts as the public prosecutor under s376(1) of the

Criminal Procedure Code (CPC) and shall have the control and direction of all criminal

prosecutions and proceedings. In the performance of such responsibility, the Attorney General

must make decisions without political influence. Under s376(3) of the Criminal Procedure Code

(CPC), the Public Prosecutor can appoint qualified individuals as Deputy Public Prosecutors,

who will act under the Public Prosecutor's control and can exercise the same powers. In PP v

Dato’ Seri Anwar Ibrahim, an advocate was appointed as a DPP to lead a prosecution. The

respondent challenged the appointment, but the court upheld it based on CPC provisions that

allow advocates to be employed for criminal prosecutions and appeals. All criminal prosecutions

must be conducted by the Public Prosecutor or an authorised person.

Powers

There are no published guidelines on how the Attorney General should decide on

prosecutions or charges. Additionally, Malaysian judges are generally reluctant to interfere with
the Attorney General's decisions in these matters. Art 145(3) of the Federal Constitution confers

AG the power as ‘exercisable at his discretion, to institute, conduct or discontinue any

proceedings for an offence, other than proceedings before a Syariah, a native court or a

court-martial’. This includes a power to prefer a less serious charge or no charges even when

the evidence shows a more serious offence. In Long bin Samat & Ors v PP, the accused was

convicted in a Magistrate's Court under section 324 of the Penal Code for causing hurt, even

though evidence showed the victim had serious injuries. The appeal argued that the charge

should have been under section 326, which has a higher penalty for grievous hurt. The High

Court upheld the Public Prosecutor's decision to pursue the lesser charge under section 324,

affirming that it was within the PP's discretion to choose the charge. In Johnson Tan Han Seng

v PP, the appellants argued that the Attorney General discriminated against them by charging

them with different offences related to firearm possession, claiming a breach of Article 8 of the

Federal Constitution. The Federal Court, interpreting Article 8 alongside Article 145(3), ruled

that the AG has the authority to decide on charges based on public interest.As from the above,

the AG has the power to decide what charge against the accused after taking the public interest

into account.

Besides, the AG has the powers to drop charges of an accused. The accused individuals

in Malaysia can submit representation letters to the Attorney General (AG) to request the

dropping of charges. The AG has the discretion to accept or reject these requests. For example,

former Prime Minister Najib Razak requested the AG to dismiss charges related to RM27 million

and RM6.6 billion. His wife, Datin Seri Rosmah Mansor, also awaited the AG's decision on her

case involving over RM7 million, with her trial starting on August 24 and a case management

set for September 7 to discuss her request to dismiss all charges.

adding Art 145(3A) after the landmark case of Public Prosecutor v Dato’ Yap Peng. In this

case, the Deputy Public Prosecutor used Section 418A of the Criminal Procedure Code (CPC)

to transfer a case from the Sessions Court to the High Court. The defence argued that this

transfer was unconstitutional because it gave judicial powers to the Attorney General, a member

of the executive branch. The High Court agreed, ruling that Section 418A violated Article 121(1)

of the Federal Constitution. The Supreme Court was divided on the issue, with some judges

finding Section 418A unconstitutional and others seeing it as procedural. In response,

Parliament amended Article 121(1) in 1988 to limit judicial power and added Clause 145(3A) to

give the Public Prosecutor explicit authority to transfer cases, thus eliminating challenges to

such transfers.

Reform

In the judgement of Lim Kit Siang v United Engineers, VC George J mentioned the

position of AG is very different from the UK as Malaysia’s AG is not answerable to anyone,

including the Prime Minister, the Parliament, or to any Ministers or Ministries if he is not a

political appointment. In short, the powers of the Attorney-General are wide and discretionary.

Thus, measures are needed to restore public trust in the Attorney General's office after events

stated above had damaged it. The following are some recommendations. One suggestion is the

separation between the role of AG and Public prosecutor. To achieve political independence, the

Attorney General as a political appointee may not be the appropriate person to decide on the

prosecution. The separation of these roles of the Attorney General may overcome this issue.

Lessons from Australia perhaps can be learned. To ensure independence in criminal

prosecutions, the Attorney General's office is separated from the Deputy Public Prosecutors

(DPP).The DPP handles most criminal prosecution functions, including starting, conducting, and

ending prosecutions, and can issue guidelines and directions for cases. However, achieving this
requires amending the Federal Constitution. The executive branch may resist because limiting

the AG's powers could reduce government authority. Additionally, a lack of political will,

consensus, and public demand could hinder reform efforts.

If the AG's functions aren't separated, courts might take a more active role in reviewing

the AG's decisions. Even in the case of Repco Holdings Bhd v Public Prosecutor, the judges

summed up the decision in Long bin Samat and Johnson Tan Han Seng by saying that the

exercise of power of the AG under Art 145(3) cannot be questioned in the courts as it was not

the intention of the Constitution. The justifications for the Attorney General’s discretion are

based on the rule of law and separation of powers, and the presumption that the AG acts

constitutionally. However, if the AG abuses this discretion, as shown in Sundra Rajoo v Menteri

Luar Negeri, there are limits to their prosecutorial power, especially when it violates individual

legal rights. In Rosli bin Dahlan’s case, the Attorney General, along with the Malaysian

Anti-Corruption Commission and others, wrongfully investigated and charged him with

corruption, and spread false information about him. He was later acquitted. In response, Rosli

sued for conspiracy, false investigation and abuse of power. The Attorney General sought to

dismiss the suit, arguing that his discretion was absolute and non-justiciable. The court held that

if a judgement is based on irrelevant factors, unlawful discretion, or abuse of prosecutorial

power for improper purposes, it can be subject to judicial review. However, this was stated as

obiter dicta.

Conclusion

In conclusion, the Attorney General must act independently, transparently, and fairly, without

political influence, to maintain public trust. As highlighted by Suffian LP in Datuk Haji Harun

Haji Idris v PP, the AG should represent the public interest with objectivity. With diminishing
public trust in government officials, transparency is crucial to restore confidence. Concentrated

power in one person or body poses a threat to liberty and national well-being.