Reforming the Attorney General’s Office in Malaysia: An Analysis of Article 145 and the Constitutional Framework of Prosecutorial Independence

Abstract

This paper does a doctrinal analysis of Article 145 of the Federal Constitution of Malaysia with respect to the institutional structure and prosecutorial roles of the Attorney General’s Office. It considers whether the existing constitutional system provides adequate protection for the independence of the prosecutor, in the context of the Attorney General as the main legal adviser to the Government and as Public Prosecutor. The study also questions the impact of the appointment system, where the Attorney General is commissioned by the Yang di-Pertuan Agong, based on the Prime Minister’s advice, on how independent criminal prosecution is perceived, and what it actually is. The study also asks questions about the perceived and actual independence of criminal prosecution in Malaysia in light of the appointment system which appoints the Attorney General by the Yang di-Pertuan Agong on the advice of the Prime Minister. Applying the doctrinal legal research methodology, the paper examines the constitutional provisions, pertinent statutory provisions and Malaysian cases and applies comparative analysis as a supplement from the United Kingdom and Canada. These jurisdictions are chosen because they have a greater separation between governmental legal advisory roles and criminal prosecution. The findings indicate that there are concerns about the independence of the institutions and executive influence over the prosecutorial system in Malaysia, due to the structural design of Article 145 of the Constitution. The findings indicate that Malaysia’s prosecutorial system operates within a constitutionally valid system, but concerns may arise on the grounds of executive influence and institutions independence in the country due to the structural design of Article 145 of the Constitution. The paper suggests that better clarity in the division of legal functions from prosecutorial discretion could improve the integrity and public trust in the criminal justice system. It ends with a doctrinal roadmap to apply to the constitutional and institutional reform of the Attorney General’s Office in Malaysia, which includes ideas for enhancing the prosecutorial independence in an environment that respects the rule of law, drawn from comparative jurisdictions.