00:10Hi, welcome back to Consider This. I'm Melissa Idris. Let's continue our discussion about the
00:15Constitution Amendment Bill 2026, which is set to be tabled for its second reading in Parliament
00:21and would formally separate the powers of the public prosecutor from the Attorney General.
00:28Now, does this bill represent meaningful reform? Well, joining me on the line now is Mahabala Krishna,
00:35who is a parliamentary and institutional development specialist. Mahabala, thank you so much for being
00:39on the show with me. Welcome back. So earlier on the show, we heard from civil society how they've
00:47been raising concerns over the need to do more to ensure the public prosecutor's independence from
00:53any influence, be that from the executive or the like. I'm wondering how you see it, Maha.
01:00Why exactly doesn't the structural separation of the two roles, why doesn't that alone guarantee
01:07prosecutorial independence? Well, first of all, thank you, Melissa, for having me back, but more
01:12importantly, for covering this really important issue. Well, yes, just separating the public
01:19prosecutor and the Attorney General doesn't deliver what we need, which is independence in both the
01:28execution of their functions, but also transparency and accountability. Yeah. So even though the Attorney
01:37General and the Public Prosecutor might clearly have different job scopes that don't overlap, that's not
01:43going to guarantee, for example, that the appropriately qualified and ethical individuals will be hired to
01:52those roles. For that, we need a transparent and also multi-layered appointments process. At the same time,
02:00while these individuals are required to act independently, they must also, as a fail-safe,
02:09be accountable for their actions. So we need those mechanisms of accountability in place. The only way to
02:15achieve all of this is to have both legal and procedural safeguards in place to ensure independence,
02:22transparency and accountability. Okay. So talk to me about that multi-layered appointments process that you
02:31mentioned. How do we look at safeguards being put in place for the appointment process? So I read that
02:42the appointments process will go through the Judicial and Legal Service Commission. Tell us more about that,
02:49and if that is enough to protect independence. So before I share that, just to give a quick context to
02:59your viewers. You know, a lot of people I come across think that safeguards for democracy is very
03:06complicated or difficult to understand. But actually, it's not that difficult to understand if you apply
03:11the thinking to your own lives. So if we look at our own experiences, how were we hired to our
03:16jobs? How was our
03:17boss or how were our senior management individuals hired to our jobs? Who had the power to decide
03:24whether to hire them? Was it one person that made that decision? Or was it several people, right? So
03:31similarly, in those situations, what are the safeguards to remove that person? And finally, in terms
03:38of removal processes, can your boss or senior management keep their jobs indefinitely with no
03:44retirement age? So it's really about applying the experiences we all have in our daily lives
03:51to the political system. So when we talk about a multi-layered appointment process for the public
03:56prosecutor, that's exactly what we're asking for. The role of the public prosecutor is so important.
04:03There is so much power vested in the hands of one individual. And it's the kind of power that impacts
04:09all of us, because many of us, unfortunately, will have some sort of encounter with the criminal
04:15process, either as potential defendants, but more often than not, as potentially as victims, right?
04:23So ensuring that the public prosecutor's appointment is, you know, that we pick the right person,
04:29and that the person is accountable is key. So when we talk about a multi-layered appointment process,
04:34what we're looking for is to ensure that the power to hire the public prosecutor isn't left in the hands
04:41of any one actor, any one political actor, that's important. Secondly, we're also looking to ensure
04:49that there's a process that allows for the filtration of various candidates, not just one candidate, but
04:56various candidates, right? So if we look at the current bill, what's being offered by the government
05:03government is a two-tiered process, where the Yang Di Perthuan Agong has been given discretion,
05:10discretion to appoint a public prosecutor on the recommendation of the Judicial and Legal Services
05:22Commission. Now, there's this really interesting difference in our constitution between a recommendation
05:30from a commission and from advice by a commission. They're entirely two different things, and they put
05:37different obligations and different restrictions on the exercise of discretion, for example. So in this
05:45case, it's interesting that the chosen term is recommendation. So we need to then understand who is
05:53this Judicial and Legal Service Commission. Now, the Judicial and Legal Service Commission is really
05:58the commission that controls, managers, regulates the judicial arm, but the lower courts, not the high
06:09courts, as well as the legal services, so the prosecutorial services that we see now. So that commission has been
06:17around a long time, it's well embedded under the constitution, but what the government is also doing is,
06:26apart from structuring this new appointment process, they are also introducing new members into the Judicial and
06:36Legal Service Commission, and retaining some members that perhaps should no longer be there. So for example,
06:42when we talk about the separation of the Attorney General and the public prosecutor, one would imagine that
06:48perhaps the Attorney General shouldn't be playing a role in the appointment of the public prosecutor,
06:54or more importantly, of every public prosecutor, deputy public prosecutor, that will be employed and
07:03appointed and carrying out the functions of prosecution across the country. The Attorney General should have no
07:09role in that. Unfortunately, we see that the Attorney General's position has been retained in the
07:15constitution, so too has the Solicitor General's position. Now, both of these are actually going to be
07:21either political appointees or within the political arm of government from now on, as we understand it.
07:30So the composition of the body that provides recommendations to the Yangtipatuan Agong is very important,
07:38but so too is the extent of the Yangtipatuan Agong powers. What can we do? If I may then give
07:45suggestions or
07:46recommendations. I think you've heard already this idea of having a multi-layered process, you know,
07:54with different groups or actors involved. I would certainly support that. I do think that there should be a
08:00tripartite process, not to remove the JLSE or to necessarily curtail the discretionary powers,
08:14but it is important that the role of the Yangtipatuan Agong be carried out or conducted on very good advice.
08:25Yeah. So for that reason, it's probably not the best idea to continue to have discretionary powers
08:31given to the Yangtipatuan Agong, but I'll come back to that in a second. I do agree with the suggestion
08:36that
08:37what we should probably be looking to do is to have a tripartite process where the judicial and legal services
08:45suggests a set of names, a short list of names, the names then go through a filtration process by
08:53parliament, either through a parliamentary committee or otherwise. And through that filtration process,
08:59a final candidate is then recommended to the Yangtipatuan Agong for appointment. This ensures that
09:15when an appointment is actually made by the Yangtipatuan Agong, it would actually be on the advice not just of
09:24one body, but it would also include parliamentary vetting and parliamentary support. I think that's key.
09:32Parliamentary support is key to protect the Yangtipatuan Agong's position.
09:37And secondly, it also means that parliament has to take responsibility.
09:42They have to finally take responsibility for who is appointed as a public prosecutor.
09:46And then the people can hold parliamentarians accountable if something goes wrong.
09:50Right, definitely. You mentioned a bit earlier, I love the analogy of our own work experience,
09:58and we don't want anyone to be in a role indefinitely. So you mentioned the removal process.
10:07So talk to me about that, the tenure and the removal process of this public prosecutor role.
10:13So I think when we look at removal process, we need to look at several different aspects.
10:19Number one, what is the term of the public prosecutor? Because that matters, right?
10:26What's the length of term? Number two, is that term of service something that's renewable or not?
10:33And then number three, is there retirement age? And number four, is whether there's a removal process
10:43in the event that there is misconduct in office, right? So really, these four aspects, once again,
10:49something that all of us should be familiar with in our daily lives. So in this case, what the government
10:55has proposed is that the public prosecutor has a fixed term of seven years. However, the proposal is silent
11:05on whether a person who serves seven years can actually reapply. Now, in a briefing by the Attorney General's
11:15chambers to Parliament on Monday, the Attorney General himself made it very clear that they are leaving
11:22the door open for a public prosecutor who has served seven years to reapply, and to continue in that role
11:31for another term. And unfortunately, potentially indefinitely, because the Constitution is also not
11:39suggesting a retirement age. So which is a little strange, because even judges of the High Court,
11:48Federal Court judges have a retirement age. So I think that is something that really needs to be taken care
11:55of. So
11:55number one, clarity on whether the public prosecutor's term can be renewed. Ideally, I think a lot of
12:02people would say perhaps not, I'm of the same view. Secondly, whether there should be a retirement age,
12:09and I think, I think the majority would be in favour of retirement age. Finally, on the removal process,
12:16well, that the process that's being suggested is similar to that for a judge, a special panel would have to
12:23be set up, established to run an inquiry to see if there has been any misconduct
12:29and the need to remove the public prosecutor. Maha, we've only got a few days of sitting left
12:35in this parliamentary session. Do you think there's still an opportunity for Parliament to
12:40strengthen this bill? And what would you like to see them prioritise?
12:44So a lot of the things that we've talked about, the improvements that are necessary to this bill,
12:51we've only talked about the highlights. There are actually a number of other things as well.
12:56Some of this is simple to make, so they can be done in a couple of, even over the next
13:00few days.
13:01A lot of them actually require more thinking, especially when you need to sort of spell out the
13:07details of the procedures and so on. So my expectation of Parliament, my ask of Parliament,
13:16is that this bill should actually be moved to a select committee for further study, for more in-depth
13:24analysis, and also the opportunity for other experts to be able to feed in on the best methods
13:31and mechanisms moving forward. I think that's essential. And I think MPs also deserve that.
13:38You know, they deserve to have the best information available to them before making such a weighty
13:43decision that is not only going to affect us long term, it is also going to be a key part
13:52of this
13:53government's legacy. Wonderful. Maha, thank you so much for being on the show with us. Maha Balakrishnanda,
13:59who's a Parliamentary and Institutional Development Specialist, wrapping up this episode of Consider This.
14:04I'm Melissa Idris, signing off for the evening. Thank you so much for watching, and good night.
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