Follow how Kenya separates AG, public prosecutor’s roles, says ex-Bar chief

Former Malaysian Bar president Karen Cheah said it was time for Malaysia to have check-and-balance mechanisms to ensure the public prosecutor’s independence and security of tenure. (Facebook pic)

PETALING JAYA: Former Malaysian Bar president Karen Cheah has urged the government to adopt Kenya’s model which separates the roles of the attorney-general and public prosecutor, citing it as an example of prosecutorial independence.

“One of the best models pertaining to the institution of the public prosecutor is in Kenya, in my opinion,” she said at the opening of the Civil Society Awards 2024 in Kuala Lumpur on Tuesday night.

Cheah said under the Kenyan system, which is governed by their constitution and the Office of the Director of Public Prosecutions Act 2013, a director of public prosecutions is selected in a transparent process by Kenya’s national assembly.

“The Kenyan director of public prosecutions 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 his powers,” she said.

Cheah said the Kenyan prosecution director is accountable by mandatory reports to the president and national assembly.

She hailed it as a “sterling feature” that the director would not be allowed to discontinue a case without the court’s permission and must consider public interest, justice and the prevention of legal abuse.

“From this brief overview of the Kenyan system, there are some helpful lessons which can be emulated in Malaysia,” she said.

Cheah said it was time for Malaysia to free its prosecutorial decisions from political influence, and have check-and-balance mechanisms to ensure the public prosecutor’s independence and security of tenure.

A ‘dotted line’ to the attorney-general

Cheah said the AG being the government’s chief legal adviser and public prosecutor could lead to potential conflicts of interest and political interference, as he or she can start, manage or discontinue criminal cases.

She asked if the AG could truly separate his role as a government servant from his prosecution duties, especially when forced to balance both.

“Would he, in a tough situation, bite the hand that feeds him?” she asked.

Cheah said it was worth taking note of England, where the director of public prosecutions operates independently but is appointed by and reports to the AG; and Australia, where public prosecutors at federal and state levels are subject to the AG’s directions in certain cases.

In New Zealand, the solicitor-general oversees prosecutions but remains accountable to the AG.

She said in all these countries, prosecutors have a “dotted line” to the AG, with limited independence but more distinct roles than in Malaysia’s system.

“I do take note that the AGs (in the above three countries) do not make the decision to prosecute in these jurisdictions.

“In any event, I would go so far as to argue that just perhaps, some degree of separation is more palatable than the situation in Malaysia. Perhaps it is a good starting point,” she said.

Law and institutional reform minister Azalina Othman Said was previously reported as saying 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 said the government was in “no hurry” to implement the separation as it requires careful study.

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