Prosecutorial Independence: A Call for Reform in Malaysia
Introduction
Former Malaysian Bar president Karen Cheah has urged the government to adopt Kenya’s model of separating the roles of the attorney-general and public prosecutor to ensure prosecutorial independence and security of tenure. She believes that this system, governed by the Office of the Director of Public Prosecutions Act 2013, is an example of best practice in terms of public prosecution.
A Sterling Feature: Kenyan System
Under the Kenyan system, the director of public prosecutions is selected in a transparent process by the national assembly. This director is not required to obtain the consent of any other authority and is not under the control or direction of any person or authority in exercising their powers. The director is accountable by mandatory reports to the president and national assembly, and is not allowed to discontinue a case without the court’s permission. Cheah hailed this as a "sterling feature" that the director must consider public interest, justice, and the prevention of legal abuse.
A ‘Dotted Line’ to the Attorney-General
Cheah noted that the attorney-general (AG) being the government’s chief legal adviser and public prosecutor could lead to potential conflicts of interest and political interference. She asked if the AG could truly separate their role as a government servant from their prosecution duties, especially when forced to balance both. She noted that in other countries, such as England, Australia, and New Zealand, prosecutors have a "dotted line" to the AG, with limited independence but more distinct roles than in Malaysia’s system.
Call for Reform
Cheah emphasized the need for Malaysia to free its prosecutorial decisions from political influence and to have check-and-balance mechanisms to ensure the public prosecutor’s independence and security of tenure. She suggested that the government study and adopt the Kenyan model, which has been praised for its transparency and accountability.
Government Response
Law and institutional reform minister Azalina Othman Said was previously reported as saying that the government was studying measures to separate the AG and public prosecutor’s roles, and would release a report on its findings next year. However, she stated that the government was in "no hurry" to implement the separation, as it requires careful study.
Conclusion
In conclusion, Cheah’s call for reform is timely and necessary to ensure the independence and effectiveness of the public prosecution service in Malaysia. The Kenyan model provides a best practice example of how to separate the roles of the AG and public prosecutor, ensuring that prosecutorial decisions are free from political interference. It is hoped that the government will take heed of Cheah’s advice and implement reforms to strengthen the institution of public prosecution in Malaysia.
Frequently Asked Questions
Q: What is the Kenyan system of public prosecution?
A: The Kenyan system is governed by the Office of the Director of Public Prosecutions Act 2013, where the director of public prosecutions is selected in a transparent process by the national assembly and is accountable to the president and national assembly.
Q: What are the benefits of the Kenyan system?
A: The Kenyan system ensures that the director of public prosecutions is independent and accountable, and that prosecutorial decisions are free from political interference.
Q: Is the Kenyan system applicable to Malaysia?
A: Yes, the Kenyan system provides a best practice example of how to separate the roles of the AG and public prosecutor, ensuring that prosecutorial decisions are free from political interference.