LETTERS: The time has come to have an attorney-general (A-G) and a public prosecutor (PP) with distinct powers. Such a proposal is not new.
Article 145(2) of the Federal Constitution stipulates: "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".
Article 145(3) provides that 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".
So, the A-G acts as the legal adviser to the government and ensures that its actions do not contravene the law.
At the same time, he or she is also responsible for the prosecution of individuals except in cases involving syariah, native or military laws, and can even stop any move to initiate criminal proceedings.
The role of the A-G as the PP is also stated in Section 376(1) of the Criminal Procedure Code: "The attorney-general shall be the public prosecutor and shall have the control and direction of all criminal prosecutions and proceedings under this Code."
The power given to the A-G seems absolute and cannot be questioned by a court of law.
In Long bin Samat & Ors. v Public Prosecutor [1974] 1 LNS 80, the then lord president Tun Mohamed Suffian Hashim said: "In our view, this clause from the supreme law clearly gives the attorney-general very wide discretion over the control and direction of all criminal prosecutions.
"Not only may he institute and conduct any proceedings for an offence, he may also discontinue criminal proceedings that he has instituted, and the courts cannot compel him to institute any criminal proceedings which he does not wish to institute or to go on with any criminal proceedings which he has decided to discontinue.
"Still less then would the court have power to compel him to enhance a charge when he is content to go on with a charge of a less serious nature.
"Anyone who is dissatisfied with the attorney-general's decision not to prosecute, or not to go on with a prosecution or his decision to prefer a charge for a less serious offence when there is evidence of a more serious offence which should be tried in a higher court, should seek his remedy elsewhere, but not in the courts."
This statement is clear. The courts have no right to intervene with any decision of the A-G to either prosecute or not prosecute a case.
The A-G is the legal adviser to the government, and the public prosecutor is the principal prosecuting authority.
Separating the two offices will increase public trust and confidence in the country's administrative and legal institutions.
Dr Muzaffar Syah Mallow,
Associate Professor, Faculty of Syariah & Law, Universiti Sains Islam Malaysia
The views expressed in this article are the author's own and do not necessarily reflect those of the New Straits Times