Seven things you need to know about Malaysia’s improved AG-PP Bill, including prosecutor’s seven-year cap

KUALA LUMPUR, July 2 — This month, the government’s proposed new law to split the Attorney General (AG) and Public Prosecutor (PP) into two separate jobs is expected to return to Parliament.

This will be one of Malaysia’s biggest ever law reforms, as it will result in the AG only having to be the government’s chief legal adviser; while the PP will take over the role of advising on pardon requests, and deciding whether to pursue or drop criminal charges.

A 12-member parliamentary special select committee (PSSC), led by the law minister and including government and opposition MPs, had on June 22 released their proposed improved version of the Bill.

So this is expected to be the Bill that MPs will debate and vote on, with enhancements such as a maximum seven-year tenure allowed for the PP role.

Here’s a quick summary of new improved version of the Bill as proposed by the PSSC:

1. PM, Cabinet can’t give advice to Agong on PP’s appointment

Currently, the Bill proposes that the Yang di-Pertuan Agong (YDPA) “shall in his discretion” appoint a qualified person to be the PP, based on the Judicial and Legal Service Commission’s (JLSC) “recommendation” and after consulting the Conference of Rulers.

PSSC’s proposed improved version: 

• The YDPA is still the one appointing a qualified person to be the PP, but this will now be based on the JLSC’s “advice”.
• The appointed PP shall come from the names given via JLSC’s “advice” to the YDPA.

Generally, the Federal Constitution’s Article 40 would mean the Agong acts on the prime minister’s advice or the Cabinet’s advice when carrying out his constitutional duties.

But the PSSC’s proposed version wants to add in a new clause to say the prime minister and the Cabinet “shall not advise” the Agong on PP-related matters.

The PSSC’s explanatory note says this means the PM and Cabinet cannot be involved in advising the Agong “in the process of appointing, removing and suspending” the PP.

2. What will Parliament’s role be in PP’s appointment?

PSSC’s proposed version will give Parliament a role: 

• The JLSC will have to give the list of names nominated for PP to Parliament.
•  If Parliament has any comments, it “may give comments” to the JLSC.

The PSSC actually also agreed on these other points, but did not include them in the Bill and instead said a separate federal law can be introduced for these details:

Civil society organisations Bersih and Ideas on June 25 said the Bill should include the other points agreed by the PSSC: The Bill should make it clear that the Dewan Rakyat can establish a parliamentary special select committee (PSSC) with the power to recommend or decline to recommend PP candidates proposed by the JLSC, before JLSC provides the candidates’ names to the Agong.

Minister in the Prime Minister’s Department (Law and Institutional Reform) Datuk Seri Azalina Othman Said on June 25 reportedly said Parliament will have full autonomy to decide its own procedures and mechanics for its oversight role via its Standing Orders and an enabling Act.

3. Introducing Code of Ethics: A written standard for a PP

PSSC’s proposed version of the Bill adds this: On the JLSC’s advice, the Yang di-Pertuan Agong may prescribe a written code of ethics for the PP.

4. So PP can be removed for not following the Code of Ethics too

Currently, the Bill lists three reasons for when a PP can be removed: can’t do the job due to health reasons; misconduct; or misbehaviour.

PSSC’s proposed version of the Bill adds a fourth reason: Breach of the PP’s code of ethics.

5. No coming back after seven-year job is done

Currently, the Bill says that the PP’s term of office shall be seven years (although the PP can still resign at any time or be removed in limited situations, before the seven years is up.)

The Bill did not say whether someone can be PP again after the seven-year term, but the government initially said it would be possible for a PP to have a renewed or extended tenure.

PSSC’s proposed Bill version: You can’t be a PP again after your seven-year term.

6. PP’s annual report to go to Parliament

PSSC’s proposed version of the Bill: Introduce requirement for PP to submit annual report on PP’s office’s “administration, management and financial position” to Yang di-Pertuan Agong on May 31 every year.

The YDPA will then have the annual report “laid before” Parliament.

Bersih’s, Ideas’ June 25 response: 

• This is welcomed, but the Bill must make it clear that PP’s annual report to Parliament is not limited to administrative and financial matters only.
• For effective checks and balance, Parliament should be able to also scrutinise PP’s policies and assess whether prosecutorial decisions (e.g. DNAA, NFA) are in line with guidelines/ ethical standards under the separate law on PP.

7. Paving the way for Parliament to make enabling Act or separate law on PP

Currently, the Bill says there can be regulations via the Agong on the PP’s appointment and procedures related to the PP under Article 145A.

PSSC’s proposed improved version of the Bill replaces it with this: Parliament can make laws on PP’s appointment, PP’s removal, PP’s annual report, and the procedures related to the PP under Article 145A.

In other words, all the finer details about the PP can be put into a federal law made by Parliament, instead of having to be listed in detail in the Federal Constitution or in regulations.

Previously, civil society had proposed such a separate law, with the Malaysian Bar recommending a new law by the name of Office of the Public Prosecutor Act (OPPA).

The second reading for the Bill is scheduled to resume during this Dewan Rakyat meeting, which runs from June 22 to July 16.

When the second reading resumes, Azalina is expected to propose that MPs approve the PSSC’s report under the Dewan Rakyat’s Standing Order 60.

If the Dewan Rakyat approves the PSSC’s report on the AG-PP split Bill without amendment, this means that the PSSC’s version of this Bill will proceed to the third reading.

Since this Bill involves amendments to the Federal Constitution, it will need two-thirds support from lawmakers at both the Dewan Rakyat and Dewan Negara in order to become law.

You can read the full PSSC report here.