Why activists say Malaysia must separate attorney general and public prosecutor roles

Malaysian civil society groups and lawyers are calling to hasten the separation of the public prosecutor and attorney general’s roles after corruption charges were dropped this month against Prime Minister Anwar Ibrahim’s deputy.

The attorney general, whose job it is to defend the government, must not have the power to prosecute because it would be a conflict of interest, especially if someone in government is on trial, they said.

Take the case of Anwar’s deputy Ahmad Zahid Hamidi, whose party is propping up the coalition government headed by Anwar.  

A Malaysian court on Sept. 4 dropped 47 graft charges against Zahid linked to the alleged misuse of millions of dollars at a charity he founded to fight poverty. The public prosecutor requested those charges be dropped, saying more time was needed to investigate the case. This, despite the prosecutor having earlier said there was enough evidence to go to trial.

Almost immediately, critics slammed the prosecution’s move, alleging there had been political interference, because Zahid was in government and his party’s MPs were needed to keep the coalition government standing and Anwar prime minister.

Criticism only heightened when a few days after Zahid was freed of graft charges, a court acquitted another lawmaker from his party of similar charges.

Why were accusations of political interference made?

They were made because the attorney general, who was appointed by the government to be its defender, was the one who also decided on dropping corruption charges against a member of the government, said Thomas Fann, chairman of BERSIH, an electoral and institutional reform group.

“This perception [of political interference] exists because the attorney general is appointed on the advice of the prime minister,” Fann told BenarNews.

“Given the fact that Anwar's government needs the support of Zahid in order to have a stable government, the suspicion of the public is that he made a deal with Zahid to let him off in exchange for support.”

Separating the roles of attorney general and public prosecutor would be a key to allaying suspicions, Fann said.

“[I]t would ensure that decisions by the prosecution [such as] withdrawal of charges are made independently, without undue political influence,” he said.

For his part, Anwar denied that he had interfered in Zahid’s case and said the attorney general alone had handled the case. 

“It is as though I must order the AG to go ahead with the charges against the Deputy Prime Minister to be deemed a hero – but I cannot go against Article 145(3) of the Federal Constitution,” he said in Parliament on Sept. 19, according to the news site of The Star.

The article Anwar referred to says the attorney general has the discretionary power to begin, continue or discontinue proceedings for any offense.

Anwar also said the attorney general at the time – he has retired since the charges against Zahid were dropped – was appointed by the previous government and that he did not change the person holding that office as soon as he came to power.

The Attorney General’s Chambers said the judge had described the prosecution’s reasons to drop the charges against Zahid as “cogent.”

Few Malaysians are aware of the prime minister’s influence on the judiciary and the role of attorney general as public prosecutor, Fann said.

Some did become aware in 2015 when then-Prime Minister Najib Razak removed the person who was attorney general back then.

Najib removed Attorney General Abdul Gani Patail in 2015 and replaced him with Apandi Ali. Gani was investigating Najib’s role in the multibillion dollar looting of  sovereign fund 1MDB.

Apandi refused to prosecute Najib, but when a new government was elected in 2018, it appointed a new attorney general who did prosecute him for the same alleged offenses.

Najib is serving 12 years in prison after being convicted for corruption in a case linked to the 1MDB scandal.

The differing decisions of the two attorneys general clearly show bias, said lawyer and writer Charles C.J. Chow in a column for local newspaper Free Malaysia Today.

“The glaring contrasting difference in the actions of the two respective attorneys general suggests, at the least, arbitrariness in the decision-making process of prosecution. At worst, it implies partiality and reflects a huge weakness in the administration of justice,” he said.

Veteran retired Court of Appeal Judge Hishamudin Yuno said Malaysia should look to countries such as India, Mauritius and Ireland, where the attorney general and public prosecutor roles are held by two individuals.

In those countries, public prosecutors are also granted security of tenure, which safeguards them from abrupt removal by the government in power, he said.

“The appointment of a public prosecutor must be entrusted to an independent committee, comprising members such as judges and representatives from the Malaysian Bar, among other relevant stakeholders,” Hishamudin told BenarNews.

“The person who is appointed should be of courage and of high integrity to combat corruption, especially in high places and to enhance public perception of the judiciary.”

The public prosecutor’s independent appointment could also be made by the select parliamentary committee or the senate to ensure the public trusts the process, said Yusmadi Yusoff, a senior lawyer and founder of social justice group Rights Foundation.

“In a mature democracy, the attorney general could be aligned to the government but the public prosecutor has to be thoroughly independent,” he told BenarNews.

Anwar reaffirmed his commitment to judicial reform following the backlash from Zahid being freed of corruption charges.

Law Minister Azalina Othman Said told reporters on Sept. 12 that the administration is looking to expedite institutional reforms including splitting the attorney general’s powers related to prosecution. 

IDEAS, a Kuala Lumpur-based think tank on democracy and economic affairs, had said in a 2016 paper that this reform would be a big step in reducing graft.

“With the roles of the attorney general and public prosecutor clearly defined, and with the necessary safeguards in place to ensure conflicts of interest are minimized, efforts to combat corruption in Malaysia can be strengthened,” it said.