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The government is expected to table its revised bill to separate the Attorney-General and Public Prosecutor roles when Parliament reconvenes in the coming weeks. The debate has now moved beyond whether the two roles should be split. The bigger question is: What kind of Public Prosecutor is Malaysia creating? And what safeguards are needed to ensure that the office of the Public Prosecutor is independent, transparent, and accountable to the public? On this episode of #ConsiderThis Melisa Idris speaks with Karen Cheah, Former President of the Malaysian Bar, and Maha Balakrishnan, who is a Parliamentary and Institutional Development Specialist.
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00:10Hello and good evening. I'm Melissa Idris. Welcome to Consider This. This is the show
00:15where we want you to consider and then reconsider what you know of the news of the day.
00:19The government is expected to table its revised bill to separate the Attorney General and
00:24public prosecutor roles when Parliament reconvenes in a few weeks. The debate has now moved beyond
00:32whether or not the two roles should be separated but the bigger question now is what kind of public
00:39prosecutor are we creating? Now what safeguards are needed to ensure that the office of the public
00:46prosecutor is independent, transparent and accountable to the public? Well joining me on the show now to
00:53discuss this further. I have Karen Chia who is the former president of the Malaysian Bar as well as
00:57Mahabala Krishnan who is a parliamentary and institutional development specialist. Ladies
01:02thank you so much for being on the show with me. Welcome. Let's talk about one of the most I
01:07guess
01:08debated aspects of the bill which is the proposal for the Yang Di Putuan Agong to appoint the public
01:15prosecutor using discretionary powers and this will be on the recommendation of the Judicial and Legal
01:20Services Commission. Karen may I begin with you? Let's talk about this role. So should the Agong
01:27essentially be placed in this position of discretionary decision making for the role of the
01:36public prosecutor which we all know will is and will be and continue to be a politically sensitive
01:42appointment? Yeah I mean I think the short answer to that question is no we think that the his majesty
01:51the king should not be put in that position as we know the monarchy in Malaysia we are in Malaysia
01:58is
01:58the concept of constitutional monarchy so they only have discretionary powers in very limited circumstances
02:08under our federal constitution so for example for example under article 40 generally all decisions or
02:17appointments that's made by his majesty the king would be on the advice of the prime minister or the
02:22cabinet or the minister and there are only those very few examples where he has discretion so for example
02:29the first one would be the appointment of the prime minister and that's provided for and second to
02:34convene the meeting of the conference of rulers that's also discretionary within his powers and third
02:40would be the dissolution of parliament so that again you know is also discretionary or to declare
02:46emergency for the country that is also discretionary so there's very limited circumstances in comparing it to
02:54the other appointments under the administration of justice system the appointment of the attorney general
02:59is on the advice of the prime minister and the appointment of the judges or the top positions
03:06in the judiciary would also be on the on the advice of the prime minister so why is it that
03:11this
03:11discretionary powers under the appointment of the public prosecutor is so abnormal I think that's an
03:20anomaly so I think it goes against the structure of the federal constitution maybe maybe before we I come to
03:25you maha just for the purposes for maybe those who may not be so familiar Karen could you explain to
03:31us
03:32what a public prosecutor does what is that role how should we think of the public prosecutor is it
03:40and and how is it different from the attorney general yeah actually that actually is the heart of the
03:47entire exercise of this the major upheaval reform that's actually being done at the moment by parliament
03:53and that the concept of separating the role of the attorney general and that of the public prosecutor is
04:00very very important and that's what we have been fighting for as in we the Malaysian bar we have been
04:06fighting for this for many many years many many decades actually wow and the idea is because the
04:14attorney general is known to be the advisor to the government okay right and so therefore there would be
04:20situations where the prosecution of people in courts may necessarily overlap and therefore there is a
04:30conflict because you know he may be that person whom the the attorney general may want to prosecute may
04:38necessarily be have been involved earlier when the advice was actually given to the government so it is
04:44that this entire that's the heart of the essence of why we had asked for the separation of the attorney
04:50general and the public so so if I understand correctly the attorney general is the legal advisor to the
04:56government the public prosecutor is the person to take them to court okay all right maha let's come
05:01back to the appointment because we've established that the public prosecutor's role is crucial key that we get this
05:09right when you think about how we appoint a public prosecutor why does this distinction between this
05:17in discretionary powers make such that why is it so important okay well just to follow up on Karen's
05:25point about the needing to separate the roles and why it's so important to keep separate what are we
05:33trying to achieve so let's be very clear on what it is we're trying to achieve we're trying to achieve
05:38the role of public prosecutor that is independent but at the same time responsible and that is the that
05:46is the balance that we're trying to strike between those two objectives and there are really four main areas
05:53we look at when we try to design a role that achieves both these objectives number one what is the
05:59appointment process is it free from undue influence number two what are the powers that we're giving the the
06:07public prosecutor is it sufficient to ensure they can act independently but at the same time have
06:13enough elements to ensure the powers are used responsibly right what are the resources that the public
06:22prosecutor is given because obviously any public office must be able to have the resources it needs and
06:30and the right to those resources without influence and finally the accountability mechanisms for for the exercise of those
06:40powers the other point in in then designing that first aspect appointment process so when we look then at designing
06:50an
06:50appointment process for a high public office such as this my advice is always to ensure that no one entity
07:06or no one person is able to
07:09have determining effect or determining power over the decision of who that should be
07:14right right remembering that in this case really anyone can be the victim of a crime anyone could
07:23potentially be accused of a crime or committing an offense whether raja or rakyat whether muntri or
07:32masyarakat madani any one of us right and with understanding this i think is is really important and this is
07:41why we say i think a lot of us when we look at the
07:45proposal by the government as to how the appointment process for the public prosecutor should lay out or should play
07:51out
07:51we have concerns so coming back to your point about the balance of you know discretion versus needing to act
08:00on advice
08:00here's the difficulty we have with the current state of law in malaysia yes for most of the functions of
08:07the constitutional monarch
08:08he uh his majesty uh must act on advice as karen says there are this very finite um class of
08:17of uh situations
08:18where the young diperthuan agon has a discretion but it's not closed the constitution also says that new classes
08:29of uh acts can also uh be included in the constitution um where the agon is given discretion but so
08:39we need to be
08:39really really careful we need to be really really careful that we don't expand that class um the other difficulty
08:47that we have is although the government may now be be willing to ensure that the young diperthuan agon's discretion
08:56um must be subject to advice
08:59uh in this case the advice of the judicial and legal service commission we're still in that legal quandary
09:06um what does it actually mean when the young diperthuan agon both has discretion and at the same time must
09:13act on advice
09:14this is actually a legal issue that's really correct me if i'm wrong karen but it's not been tested in
09:20court
09:21like because it sounds contradictory does it not you you either act on the advice or you have that discretion
09:27you know um or otherwise what will happen is that there'll be a conundrum i mean what if they uh
09:35provide
09:36uh some names or recommend some names and um his majesty the king said i don't have to listen to
09:41this i'm
09:41going to act on my discretion but you know again that that then um makes a mockery of the entire
09:49mechanism of the appointment um because um the ultimate discretion of uh the young diperthuan agon
09:58um cannot be questioned or accountable in terms of parliamentary oversight um he makes that decision so
10:05therefore it's not transparent how why it's actually done and uh he cannot be questioned so
10:10you can't take him to court and if i could just add one more thing um there will be a
10:16conflict and
10:17overlap in terms of um uh if you look at the federal constitution that is the provision where you know
10:23if you
10:23want to uh institute legal proceedings against a royalty um at the special courts um you need to get the
10:31consent of the attorney general in this case it would probably be converted to the public prosecutor
10:38so how does the um majesty his majesty the king exercise his discretion in order to appoint the
10:46public prosecutor then at the end the public prosecutor be put in a conflicting position okay
10:51whether or not to give the consent to institute proceedings so you know it is an anomaly in terms
10:57of the structure of our constitution thank you for highlighting that i think that's that's an
11:01important uh new uh nuance to have brought up today but i'm going to move the conversation along to
11:06beyond the appointments process and i'm going back to what maha said the four different uh aspects so
11:12let's look at the what powers the office will have and what resources and then we'll move on to
11:17accountability but looking at what powers and what resources the malaysian bar karen has uh argued that
11:24the constitutional amendments for um for separating the two roles that alone is not sufficient but what we
11:30need actually is another legislation a complementary uh legislation if i may of the office of the public
11:38prosecutor act which has a wonderful acronym of oppa yeah so maybe you can tell us a little bit about
11:45why this legislation is important to uh spell out some of the institutional details yeah um you can't have
11:52all the nitty-gritty details inside the federal constitution obviously the federal constitution is just to
11:57lay down the basic principle and the concept and the groundwork whereas you know there'll be many
12:03um details that would be required in order to run the mechanism so uh oppa or the office of the
12:10public
12:10prosecutors act uh is uh something that um i believe i'm not the only one who's actually suggesting it i
12:15think
12:16many other uh ngos are also uh saying that you know this is something that must go hand in hand
12:23together with the proposed amendments uh the proposed bill um what should be inside uh the opa is uh
12:31firstly i think you must talk about the role and functions of the public prosecutor you can't spell all that
12:37out in the federal constitution uh it must you must have uh the mechanism and the hearing processes of the
12:44appointments and the removal of the public prosecutor um you know and um the uh there must be enabling
12:53provisions to say um okay perhaps some guidelines can come out uh on how such hearings can be conducted
13:00can't have all that in the constitution um and i think what's also very important is that we must have
13:05the public prosecutor's code of conduct um so you know very much similar to let's say the judges uh ethics
13:14committee act um where you know there are certain circumstances uh which may amount uh to misconduct
13:23what is actually you know a breach of the code of conduct um what are actually good practices now why
13:30we
13:30want the code of conduct to be inside uh this enabling legislation is because currently there is no uh
13:38code of conduct not just for the attorney general or uh the the um councils within the attorney general's
13:45chambers so therefore anything that is built by them or guidelines issued by them are not legally binding
13:52so if we have it in the enabling legislation then you will have a very uh set boundary as to
13:59what is
14:00good and what is not good and therefore you know it being legally binding means there must be consequences
14:06for bad behavior okay i want to just delve into that a little bit more about this code of conduct
14:12and
14:13guidelines let's talk about that um what would be in it and why why is it important for the public
14:22to understand that there are there's a code of conduct that this office of the public prosecutor
14:28has to abide by well a code of conduct essentially is a set of rules that bind you a set
14:34of rules according
14:35to which you have to act we're all familiar with rules we're all familiar in in our work environments
14:41we're all familiar in social environments driving down the street you are subject to a set of rules
14:46right so the idea here is similar that if we are going to ensure that we have a public prosecutor
14:53and a prosecutorial service that is independent but also responsible then we need to be clear on what
14:59their rules are that apply to them that they need to abide by so this is what a code of
15:04conduct essentially
15:05does and in terms of the prosecutorial service i would say that a code of conduct has generally four different
15:12areas and there may be more but i think these are the four essential areas number one
15:17uh a set of charging guidelines so guidelines around how uh prosecutors are to decide on on taking up a
15:26case
15:27who does who to charge um under what offenses uh how do you make those decisions in the uk for
15:34example
15:35they apply a two-step test so in every case you have to first uh look at whether you have
15:40sufficient evidence
15:41um and secondly look at the public interest as well in taking that case up uh so that's one charging
15:48guidelines the second point is is there a conflict of interest um is the is the prosecutor in this case
15:54or the prosecutorial service in some way um uh potentially conflicted from taking up a particular case
16:03number three um guidelines around the discontinuance of of prosecutions and this unfortunately
16:10malaysians have come to learn a lot about in the past few years with the daa's and the dnaa's right
16:17and the nfe's and the nfe's are no further action no further action so all of this right
16:24what are the rules what are the protocols um they have to be applied consistently and can with some
16:30consistency but also we need to know what they are finally a set of ethical principles and surely this
16:36goes without saying um any public officer uh should have a very strict set of uh ethical principles
16:43they must abide by that talk about things like uh their need to be independent their need to be
16:48objective uh to apply fairness and proportionality and consistency in the decisions that they make
16:55and also to act in a way that's transparent may i ask does the attorney general chambers currently have
17:01a codes and of conduct and guidelines um i believe that there was um a set of code of conduct
17:09which
17:10was on their website at one point uh but i think uh we cannot trace it and locate that now
17:16but that's
17:17just a guideline it's just a guideline so as we create this office of the public prosecutor we have to
17:23from the out the design of it has to be accurate okay well i think the mere fact that
17:28we can't answer that question is a real problem yes we should know this yes um any company publishes
17:36its guidelines and its rules are you terms of service right um any rules that bind us all public as
17:43as
17:43members of the public journalists i think this is really a question that uh yeah it's beyond past time
17:53that we are okay so coming back to the oppa the um the legislation uh talk to me about whether
18:01or not
18:01something like this is in the works are we um can we push for this and what are the risks
18:07if we don't have
18:09a office of the public prosecutors act um i think uh to answer the last question first i think if
18:16we were
18:17to only have the amendments to the constitution without an enabling act and oppa then it would
18:24essentially give carte blanche to the public prosecutor and the prosecutorial service um to
18:31in a sense continue to function the way to some extent they are functioning now with very little
18:37transparency and certainly no accountability in fact it might be even worse than what we have now
18:43uh and i hate to say that but it might actually be even worse than what we have now because
18:47at least
18:48currently um with the two roles fused in one person in the attorney general the attorney general is
18:56answerable directly to the prime minister which is not ideal and and against you know basic principles
19:02of democracy however the prime minister is answerable to parliament
19:06um so indirectly parliament is able to question and have some level some little level of um accountability
19:15over over the attorney general um i fear that without an enabling act alongside the constitutional
19:23amendments we will not achieve what we seek we might end up with something worse right karen did you
19:29have anything to add on that i did want to also ask about the accountability just on the note of
19:35who's
19:35answerable uh from the office of the public prosecutor are there sensitivities involved in um prosecution
19:45cases that require some degree of confidentiality therefore shouldn't be accountable to say parliament or
19:53public um oversight maybe you can kind of set the record straight because i'm hearing this a lot that
19:58actually we we really shouldn't be privy to everything to everything yes um i think i think we we need
20:06to
20:06remember when when we are talking about separating the role of the attorney general and the public
20:10prosecutor we really just want to strengthen the institution of the attorney general's chambers we want
20:16to strengthen the legal process and the administration of justice in the system we are expecting some level of
20:24transparency and of course some level of accountability um but it cannot be a position where everything has
20:31got to be you know uh opaque um so for example if you're talking about um matters which have not
20:39gone to
20:39court yet um i mean obviously if you're talking about certain uh matters which is that investigation is still
20:46ongoing um then obviously i think we understand um you know that confidentiality uh issues arising from
20:53there um if we are talking about issues uh that cannot be disclosed because of national security
21:00national security but you know national security can be misused um as in be it being used too wide
21:09anything can come under national security now so i think we need to actually restrict the scope of what
21:14national security is so if you're talking about terrorism yep okay fine we can understand if you're
21:19talking about espionage spying whatever this that's also acceptable um maybe even state secrets you know
21:27um but other than that it must be very limited the scope must be very limited this is before we
21:33go to
21:33court after you go to court i don't think we need to worry too much already because it's already under
21:37the
21:38purview of the court so the court will be able to actually be the check and balance to come up
21:42with
21:42whatever that's necessary come up with gag orders you know have in-camera proceedings that means you
21:47know hearings away from um the public and all those can be controlled by the court okay maha you
21:54know i think um there are some valid concerns about this idea of how far does accountability go
22:00especially with prosecutorial cases and certainly some some cases are sensitive and the last thing we
22:06want is to create a situation in which suddenly um there's pressure brought on the public prosecutor
22:13to to act in a certain way simply to avoid answering questions in parliament or to avoid the heat right
22:21however having said that this is being done across the world right in in other countries public
22:27prosecutors are required to subject themselves to accountability mechanisms in parliament because the
22:34principles are very clear and the limits are very clear all parliament can do in terms of
22:38accountability is to ensure that there are fixed codes of conduct fixed guidelines around how
22:46prosecutorial officers operate and that they are abiding by it certainly there should be no reason why a
22:53public prosecutor would need to explain to parliament or to group of mps what is the evidence in a
22:58particular case okay okay no one is i see okay okay so so let's talk about where we are at
23:05currently
23:05we're ahead of the parliament sitting and we want to know the political reality of whether this bill
23:11can pass the way it is so uh pandan mp rafizi ramli i recall vividly him saying that he will
23:18not along
23:19with some other government backbenchers he will not support this bill um with this amendment without there
23:26being some form of a parliamentary oversight and that would stop or or be very difficult to get the
23:32two-thirds majority needed for the constitutional amendment but with rafizi ramli and nick nazmi no
23:38longer mps does that materially affect the bill's political prospects maha so despite the fact that uh rafizi
23:48ramli and nick nazmi have stepped down um despite the fact we now have less than 222 mps
23:54uh the two-thirds mark benchmark is still 148 mps um i so it is still entirely possible i believe
24:04for
24:05the government of the day to cobble together the the two-thirds majority needs um if the mps are
24:11convinced that they have a bill um that will achieve the objectives which i laid out earlier right
24:17uh a proper separation between the two roles uh independence and uh responsibility in terms of the
24:25public prosecution and can i ask you your message to the mps uh and to the public in the lead
24:31up to this
24:32bill being tabled and debated and voted on karen may begin with you um i would like to i would
24:39like to
24:39maintain i would like to maintain the fact that you know um the office of the public prosecutors act is
24:45very very important it must go hand in hand together with the constitution otherwise we will be stuck in
24:51a position where we have uh where where the public prosecutor and then also the attorney general now
24:56instead of one big high position is two high positions um being given um you know permission to do
25:04many many things uh without the details that is necessary so um that detail that oppa is so very
25:11important maha i think every um attempt at reforming an institution is an opportunity to rebuild and
25:20recreate but in rebuilding and recreating we actually take something apart and then try to
25:25put it back together again and in that moment where we are right now uh we could be rebuilding
25:30it to something better or potentially worse so we do have to pay attention and i ask that all mps
25:35pay
25:36very close attention uh to what is being suggested uh the amendments that are being suggested to this
25:41bill um and to ensure that the end result um meets the main objectives that we've all been uh
25:48asking uh for a very very long time thank you so much for being on the show and shedding some
25:54light
25:54on this really important issue i appreciate your time that's all the time we have for you on this
25:58episode i'll consider this i'm melissa idris signing off for the evening thank you so much for watching and good
26:04night
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