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The separation of the Attorney General and Public Prosecutor in Malaysia is primarily constitutional and functional rather than institutional. The AG’s constitutional role encompasses broad prosecutorial powers, including control and discretion over criminal proceedings, while the PP acts as the AG’s agent in executing these functions. The courts have consistently upheld the AG’s wide discretionary powers, emphasizing that decisions related to prosecution are rooted in legislative authority and must be exercised lawfully.
While the AG’s independence is recognized, challenges to prosecutorial decisions are limited and require a clear legal basis. Judicial review is permissible, but the courts tend to respect the AG’s broad discretion, provided there is no evidence of mala fide or procedural impropriety.
In comparison with other states like Singapore and India, Malaysia’s model aligns with a common constitutional approach where the AG acts as the guardian of public interest with overarching authority, and the public prosecutor executes prosecutions under this authority. However, the Malaysian legal framework emphasizes the importance of lawful exercise of discretion and safeguards against abuse, ensuring that prosecutorial independence does not translate into arbitrary power.
References:- ["MOHAMMAD NAJIB TUN HAJI ABDUL RAZAK vs THOMAS THOMAS @ MOHAN K THOMAS & ANOR - High Court"]- ["CHRISTINE LIM CHOY WAN vs JABATAN PEGUAM NEGARA & ANOR - High Court"]- ["BAR MALAYSIA vs PEGUAM NEGARA MALAYSIA & ANOR - High Court"]- ["MESSRS TAI CHOI YU & CO ADVOCATES vs ARIFIN ZAKARIA - Court Of Appeal"]- ["SYAFIQA SHIRLEYNA CHAN ABDULLAH vs MAJLIS AGAMA ISLAM SELANGOR & ORS - High Court"]- [](https://supremetoday.ai/doc/judgement/MYS_MARSDENLR_2009_4292)- ["MYS_MLRH_2009_2_MLRH_855"]
In Malaysia's legal system, a common question arises: write a legal opinion on separation of attorney general and public prosecutor in malaysia with references from other state. This inquiry touches on the heart of prosecutorial powers and constitutional structure. Many wonder if the Attorney General (AG) and Public Prosecutor (PP) operate as distinct entities, especially when comparing federal and state practices. This blog post provides a detailed examination, drawing from constitutional provisions, statutes, judicial insights, and state-level parallels to clarify the unified nature of these roles.
Disclaimer: This article offers general information based on legal sources and is not a substitute for professional legal advice. Consult a qualified lawyer for specific cases.
Generally, in Malaysia, there is no formal separation between the Attorney General and the Public Prosecutor. Article 145(3) of the Federal Constitution vests prosecutorial powers exclusively in the AG: The Attorney General shall have power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for an offence, other than proceedings before a Syariah Court, a native Court or a Court martial. PP vs SYARIKAT TEKALA SDN BHD - 2007 MarsdenLR 2001
This is reinforced by section 376(1) of the Criminal Procedure Code (CPC): The Attorney General shall be the Public Prosecutor and shall have the control and direction of all criminal prosecutions and proceedings under this Code. PP vs SYARIKAT TEKALA SDN BHD - 2007 MarsdenLR 2001MOHD RAFIZI RAMLI vs PP - 2013 MarsdenLR 2352PP vs MOHD ZAD ABDULLAH & OTHER CASES - 2015 MarsdenLR 2322
Courts have consistently treated these roles as unified, with the AG as the sole constitutional authority. For instance, judicial commentary states: It follows from the foregoing discussion that the only authority that is constitutionally entitled to conduct prosecutions is the Attorney-General as Public Prosecutor. RAJENDRAN M GURUSAMY vs PP - 2001 MarsdenLR 1523
Additional sources affirm deputy powers. For example: a Deputy Public Prosecutor may exercise the rights and powers of the Public Prosecutor. JOHNSON TAN HAN SENG vs PP & OTHER APPEALS Yet, discretion like sanctions under certain regulations remains with the AG, as the discretion conferred upon the Attorney General by reg 2(1) cannot be sub-delegated to a Deputy Public Prosecutor. JOHNSON TAN HAN SENG vs PP & OTHER APPEALS
Article 145(3) grants the AG discretionary prosecutorial control, exclusive to non-Syariah, native, or martial courts. Section 376(2) CPC ensures continuity: the Solicitor-General acts as PP in the AG's absence. MOHD RAFIZI RAMLI vs PP - 2013 MarsdenLR 2352
This integration is echoed in cases like Public Prosecutor Ismail Bin Haji Ibrahim V. Public Prosecutor, noting pre-Merdeka judicial authority on PP powers. JOHNSON TAN HAN SENG vs PUBLIC PROSECUTOR
Section 376 frames appointments from the Public Prosecutor, prompting debate: The appointments of and delegations to senior deputy, deputy and assistant public prosecutors devolve from the public prosecutor and not from the attorney general. RAJENDRAN M GURUSAMY vs PP - 2001 MarsdenLR 1523
Scholars question parliamentary authority: Can parliament give away the powers given to the attorney general by the constitution? Those provisions of the code giving the powers of the attorney general to the public prosecutor and others could similarly be held to be unconstitutional. RAJENDRAN M GURUSAMY vs PP - 2001 MarsdenLR 1523
Treating CPC as adjectival law subordinate to the Constitution, delegations may require AG's personal authorization. Pre-amendment section 380 CPC allowed limited private prosecutions but did not create separation. PP vs SYARIKAT TEKALA SDN BHD - 2007 MarsdenLR 2001
Deputy limitations persist: A sanction... may be signed by a Deputy Public Prosecutor but the discretion... cannot be sub-delegated. JOHNSON TAN HAN SENG vs PP & OTHER APPEALS
States like Sabah and Sarawak offer insights. In civil proceedings: in the case of the States of Sabah and Sarawak, by the State Attorney General in the case of civil proceedings by or against the Government of a State or a State officer. LIM GUAN ENG vs RUSLAN KASSIM & ANOTHER APPEAL - 2021 MarsdenLR 3057
Trengganu allowed pleaders for private prosecutions pre-amendment, but criminal matters remain federal under Article 145(3). PP vs SYARIKAT TEKALA SDN BHD - 2007 MarsdenLR 2001 No state vests separate PP powers; structures align with federal unity.
Comparative notes from other jurisdictions, like appointments of Additional Advocate Generals as PPs, highlight similar integrations without true separation. SANDEEP NAIR VS UNION OF INDIA - 2013 Supreme(Chh) 321
Other contexts, such as approver appointments or counsel roles, reinforce PP oversight without division. Antecedents do not bar approvers, but processes stay under PP control. Anosh Ekka VS State of Jharkhand - 2018 Supreme(Jhk) 480
The unified structure minimizes challenges. Reforms should constitutionalize AG as PP explicitly, beyond CPC. Litigants may invoke Article 145(3) supremacy against delegations. State alignments prevent discrepancies.
Malaysia maintains a unified AG-PP framework, with no formal separation despite delegation ambiguities. State references from Sabah, Sarawak, and Trengganu reinforce this, focusing on civil parallels. While deputies aid operations, core powers rest with the AG.
Key Takeaways:- AG = PP per Constitution and CPC. PP vs SYARIKAT TEKALA SDN BHD - 2007 MarsdenLR 2001MOHD RAFIZI RAMLI vs PP - 2013 MarsdenLR 2352- Delegations raise theoretical issues but face no successful challenges. RAJENDRAN M GURUSAMY vs PP - 2001 MarsdenLR 1523- States mirror federal unity.- Seek expert advice for case-specific applications.
References:1. RAJENDRAN M GURUSAMY vs PP - 2001 MarsdenLR 1523: AG/PP unity and delegation critiques.2. PP vs SYARIKAT TEKALA SDN BHD - 2007 MarsdenLR 2001: Article 145(3), CPC sections.3. MOHD RAFIZI RAMLI vs PP - 2013 MarsdenLR 2352: CPC 376 details.4. PP vs MOHD ZAD ABDULLAH & OTHER CASES - 2015 MarsdenLR 2322: PP powers.5. LIM GUAN ENG vs RUSLAN KASSIM & ANOTHER APPEAL - 2021 MarsdenLR 3057: State AG roles.6. JOHNSON TAN HAN SENG vs PP & OTHER APPEALS: Deputy powers.7. JOHNSON TAN HAN SENG vs PUBLIC PROSECUTOR: PP case law.
This analysis underscores Malaysia's prosecutorial cohesion, vital for legal practitioners and observers.
#MalaysiaLaw, #AttorneyGeneral, #PublicProsecutor
The Second Stage: (At The Attorney General/Public Prosecutor Level) [59] The Investigation Paper/s from the Police/MACC that contained the evidence collected from the investigation/s, will be submitted to the Attorney General/Public Prosecutor who ... The Public Prosecutor and his DPPs will then have to come to Court in a full trial to testify and to explain for each case, wasting his official time and p....
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Attorney General ... ... Objection By The Attorney General [16] It was submitted by learned Senior Federal Counsel that when the Attorney General appears at leave stage, the Attorney General appears not for the respondent, but in the capacity as Attorney General. ... [Emphasis Added] [28] The two-step threshold test requires applicants to demonstrate, at the leave stage, that: (i) they have a legal#HL_E....
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a Deputy Public Prosecutor may exercise the rights and powers of the Public Prosecutor. ... A sanction, it is urged, may be signed by a Deputy Public Prosecutor but the discretion conferred upon the Attorney General by reg 2(1) cannot be sub-delegated to a Deputy Public Prosecutor. As against that submission Datuk Yusuf takes the point that it is essentially a question of construction. ... [42] Still on the power ....
A sanction, it is urged, may be signed by a Deputy Public Prosecutor but the discretion conferred upon the Attorney General by reg 2(1) cannot be sub-delegated to a Deputy Public Prosecutor. ... , it is certified by a Deputy Public Prosecutor then it amounts to a sub delegation of power to the Deputy Public Prosecutor and is bad. ... subject to certain exceptions, which do not apply here, a Deputy Public#....
Public Prosecutor Ismail Bin Haji Ibrahim V. Public Prosecutor . Public Prosecutor V. Muniandy and Lim Eng Koi v. Public Prosecutor [1948- 49] MLJ Supp 63. ... Public Prosecutor may exercise the rights and powers of the Public Prosecutor. ... Public Prosecutor [1974] 2 MLJ 152 there was ample judicial authority before Merdeka to show that the ....
Public Prosecutor Ismail Bin Haji Ibrahim V. Public Prosecutor . Public Prosecutor V. Muniandy and Lim Eng Koi v. Public Prosecutor [1948- 49] MLJ Supp 63. ... Public Prosecutor may exercise the rights and powers of the Public Prosecutor. ... Public Prosecutor [1974] 2 MLJ 152 there was ample judicial authority before Merdeka to show that the ....
[2] The 1st putative Respondent is the Attorney General of Malaysia. ... The Objection From The Attorney General [33] The Attorney General ("AG") objects to this application for leave. ... that the order of the deputy public prosecutor is not reviewable under O 53 of the RHC. ... Menteri Luar Negeri, Malaysia & Ors; [2021] 5 MLJ 209; [2021] 6 CLJ 199 FC, learned counsel submitted that even the power of the #HL_ST....
The appellant has challenged the sale deed, which has been registered by the Power of Attorney that was executed in Malaysia, contending that the Power of Attorney is contrary to the provisions of Section 14 of the Notaries Act, 1952 which does not include Malaysia in the reciprocal arrangements for recognition of notarial acts done by foreign notaries, since Malaysia is not a signatory to the Convention dated 05.10.1961. The said General Power of Attorney was executed in Malaysia on 05.05.2004. 3. The sale deed in dispute dated 18.02.2005 was executed by the writ petitione....
A supplementary case diary was submitted and 3 more witnesses were sought to be examined. After the transfer of the case, the Additional Advocate General of the State was appointed as a Public Prosecutor to conduct further prosecution. Thereafter all the witnesses including the first Investigating Officer and the second Investigating Officer stood examined. An application was submitted on 07.01.2016 by Vikram Gope @ Barood Gope expressing his desire to become an approver to repent his crime.
The first issue was as to whether a District Attorney/Additional District Attorney/Public Prosecutor/Assistant Public Prosecutor/Assistant Advocate General is eligible for appointment on the post of District Judge. The other issue raised during the course of argument was as to whether period as an Advocate or Pleader for a period of seven years is to be preceding seven years on the last date of submission of application or it can be any seven years. The argument aforesaid is referred in Para 35 and decided with reasoning in Para 102 of the judgment (supra).
(10) By the impugned Government Order, the appointment of District Government Counsel (Revenue) cannot be regulated where under the U.P. Z.A.L.R. The Government has ample power to appoint special counsel under Section 24(8) of CrPC in any case at any time but when the question cropped up with regard to appointment of District Government Counsel who works as officer of the Court, then being a statutory post, the opinion of the District Judge is must.” The committed Prosecutor as well as the committed judiciary both are anti-thesis to rule of law and subservient to democratic process (supra). ....
12. Administration of criminal justice has been entrusted to the Office of the Advocate General by the State. The State has appointed Mr. Kishore Bhaduri as Additional Advocate General/Public Prosecutor.
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