Remove constitutional blinkers to resolve AG–PP reform issue

The Federal Constitution already provides the necessary safeguard.

For more than three years now, the Madani government has chased its tail in attempting to honour the promised reform of separating the roles of attorney-general (AG) and public prosecutor (PP).

By now, the purpose of this reform has become common knowledge. It seeks to divest the AG’s unfettered prosecutorial powers and vest them in the PP via a newly-created constitutional office.

The intention is to remove executive influence over prosecutions, since the AG also acts as the government’s legal advisor.

The people’s frustration at the delay is justified. Executive influence over prosecutions has long been a cancer in our system, eroding confidence in the rule of law.

We are told that in-depth studies have been conducted, including by way of the must-have “lawatan sambil belajar” to the UK, Canada and Australia.

Yet when the Constitution (Amendment No. 2) Bill 2025 finally reached the Dewan Rakyat, it was clear the exercise was half-baked. The Bill was found to be silent on the most critical issue: the PP’s accountability.

Instead of reform, we saw replication. The notorious Article 145(3) — which gives the AG unfettered discretion to “institute, conduct or discontinue proceedings” — was simply transplanted into a proposed new Article 145B(1), which now vests the PP with unchecked power.

Since then, the government, backbenchers, opposition MPs, lawyers and others have debated endlessly over how to make the PP accountable, and to whom.

Well, the answer is staring them in the face, if only they remove their blinkers.

The Federal Constitution already provides a safeguard.

All that is needed, is for the law to require the newly appointed PP to take the constitutional oath of office — to “preserve, protect and defend the constitution.”

As I have said before, that oath is not ceremonial. It is a solemn covenant. It will serve to bind the PP to the constitution, not to any politician.

But what is the remedy if the PP violates his oath of office?

The real remedy lies in recognising the courts’ suo motu powers, i.e. the power to act on its own motion.

But unlike the Indian Supreme Court, which routinely issues suo motu directions to police arbitrary exercises of authority, our judiciary remains reluctant to exercise its constitutional judicial power.

In my view, Article 121(1) — which vests the superior courts with judicial power — read with the oath of office, allows for the court to act suo motu.

If there is hesitation in accepting this, then an amendment to the Courts of Judicature Act 1964 should be made to expressly authorise it with a proviso granting the Malaysian Bar, the Sabah Law Society and the Advocates Association of Sarawak the right to be heard as a check-and-balance before orders and directions are made.

This will allow the courts to arrest abuses of power at the source and ensure that constitutional office holders and their agencies act only within the framework of the law, without need for protracted litigation or political intervention.

This principle should not be limited to the AG and PP. The inspector general of police and the chief commissioner of the Malaysian Anti-Corruption Commission wield enormous powers over enforcement and investigation.

In the absence of an oath to preserve, protect and defend the constitution, arbitrariness and corruption are bound to remain entrenched in these agencies. Extending the oath to these institutional heads would close a critical gap in our constitutional framework.

When I joined the judiciary, I realised how undernourished it was in knowledge, and how unable it was to deliver timely justice despite the time afforded to judges.

Many had scant understanding of the scope of the oath they had taken, and of the judicial power vested in that oath to police constitutional office holders and their agencies.

The consequences were an inability to check arbitrary abuse of power, rampant corruption, massive backlogs and integrity issues.

The backlog became so severe that top lawyer Zaki Azmi had to be parachuted into the federal court as chief justice to clear the backlog and put in place a management system.

An exemplary, no-nonsense individual, he was able to accomplish the task in a short period of time.

Unfortunately, many of those who followed him into the top judicial office lacked his skills and aura to sustain the momentum.

The late chief justice Abdul Hamid Mohamed tried by introducing his “Buat Kerja” slogan when he took over, but with little success.

The legal industry and academia were also unhelpful, spouting lofty rhetoric but without offering practical solutions.

In my humble opinion, the oath of office jurisprudence, which I developed myself, and the courts’ suo motu powers offer a practical solution to the current predicament.

Such a framework would achieve the aim of reducing executive influence in the exercise of prosecuting powers, and would empower the courts to intervene swiftly when constitutional breaches occur.

The views expressed are those of the writer and do not necessarily reflect those of FMT.