Separation of AG and PP powers around the world
MINISTER in the Prime Minister’s Department (Law and Institutional Reform) Azalina Othman Said is reported to have said that the empirical study of the separation of powers of the attorney-general (AG) and the public prosecutor (PP) is expected to be completed this year.
Empirical means based on what is experienced or seen rather than on theory.
It is heartening to note that earlier this month Azalina led a delegation to conduct an empirical study of the separation of powers of the AG and PP in Ottawa, Canada, to identify a suitable model for Malaysia.
The study is expected to continue in Australia in June before concluding in the United Kingdom, with the cooperation of several universities.
Other than Canada, the UK and Australia, another jurisdiction to look at would be Hong Kong.
Another jurisdiction to look at is Mauritius, an island republic in the Indian Ocean. It gained independence from British rule on March 12, 1968 and became a republic in 1992.
Mauritius has a hybrid legal system which combines both civil and common law practices. It is governed by principles drawn from both the French Napoleonic Code and English Common Law. Mauritius has retained the Judicial Committee of the Privy Council of the United Kingdom as its final court of appeal.
Before 1964, there was in Mauritius an office of procureur general (French for chief prosecutor), which has no precise analogue within the British legal system. Under Article XXXVII of Ordinance No 29 (1853) and Article 48 of Chapter 169 of the Laws of Mauritius in force in 1945, the procureur general was expressly empowered to enter a nolle prosequi, which is Latin for ‘we will not prosecute further’.
With the advent of the 1964 Constitution, the office of procureur general came to an end and in its place, there were created two new offices – that of AG and public prosecutions director (DPP). This arrangement was retained in the 1968 Constitution when it attained independence, which remains in force.
Sections 69 and 72 of the 1968 Constitution provide for the offices of the AG and DPP, respectively.
So, why not an empirical study of Mauritius as well?
I have suggested amending the Federal Constitution by adding Article 145A on the DPP with consequential amendments to Article 145 (on the AG).
The government has a two-thirds majority in parliament.
In any case, the proposed amendments should receive bipartisan support such as the constitutional amendments to prevent party hopping (Article 49A). – May 19, 2024.
* Hafiz Hassan reads The Malaysian Insight.