The government is expected to table the amendments to the constitution that would enable the separation of powers between the Attorney General (AG) and Public Prosecutor (PP). The current position, which is set out clearly in Section 376 of the Criminal Procedure Code (CPC) and Article 145 of the Federal Constitution, has come under heavy criticism, especially when high-profile cases involving political elites have been dropped with the granting of dismissal not amounting to acquittal (DNAA) or outright dismissal amounting to acquittal (DAA).
A recent report by Projek SAMA (Sustainability and Accountability for Malaysia) revealed that out of 28 cases of corruption, criminal breach of trust, and money laundering cases involving elected representatives since the 2018 General Election, 10 cases had their charges withdrawn by the prosecution, leading to either a DNAA or DAA for the accused. Such incidents have fuelled widespread scrutiny and distrust of the justice system among the public, citing selective prosecution of political opponents and selective impunity for those in power and their allies.
Currently, under Section 376(1) of the CPC, the AG shall be the PP and have control and direction over all criminal prosecutions and proceedings under this Code, centralising prosecutorial authority with the AG. Therefore, civil society organisations and the legal fraternity have been demanding that Anwar’s MADANI government fulfil its promise to reform these prosecutorial powers by separating the AG institution into two separate entities: the AG and the Public Prosecutors’ Office.
But proponents of this move feel that separation alone is insufficient, as it fails to establish a genuinely independent prosecutorial body equipped with robust transparency and accountability mechanisms. To meet these aspirations, the following recommendations are suggested: establish a multi-layered PP appointment process with Parliamentary oversight; enact a enabling act; specify the relationship between AG and PP; institute a code of conduct for the PP; establish PP accountability to the Parliament and set up a separate prosecutorial service commission to govern appointment, promotion, transfer, and discipline of all federal prosecutors — without executive influence.. It is strongly perceived that these reforms will prevent executive influence from getting political elites off the hook, especially when cases have progressed, establishing prima facie, and defence has been called.
However, how do these reforms benefit the common man? As remarked by BERSIH, ‘the prosecuting authority must not serve the government of the day, but serve the public interest, the constitution, and the demands of justice’. Approximately RM277 billion has been lost due to corruption in cases involving political elites. These funds could have been used to build the much-needed hospitals, schools and other necessary infrastructure for the rakyat. For example, the RM 8.99 billion embezzled in Najib’s cases could have been used to build either 93 new hospitals or 34 new hospital blocks.
Furthermore, activists are concerned about the use of the criminal justice system by the executive to investigate, charge, and subdue political opponents and those who speak truth to power. SUARAM’s recent report, ‘Malaysia Human Rights Report 2025’, states that Section 233 of the Communication and Multimedia Act (CMA) has been increasingly used to police online expression, reaching an all-time high with 28 charges in 2025, doubling the number from the previous year. Furthermore, the report notes that criticism against Prime Minister Anwar Ibrahim and Sabah Governor Tun Musa Aman invited greater enforcement of the Sedition Act, invoking Section 233 (CMA) together with other Penal Code sections such as Section 504/or Section 505. 2025 also saw charges being brought against organisers and participants of peaceful assemblies, such as the Gempur Rasuah, where the Sabah AGC continued to charge the activist even after the Prime Minister’s announcement regarding the proposed amendments to the Peaceful Assembly Act 2012.
The question is whether a truly independent Public Prosecutor institution would reduce politically motivated prosecutions. While activists and opposition figures may still face police intimidation, investigation, or arrest when engaging in protests against the government, it remains to be seen whether a Public Prosecutor acting independently from the executive would continue to press on with politically motivated charges intended to silence dissenting voices since the final decision on the preference of charges, whether to prosecute, amend, continue, or withdraw charges lies with the Public Prosecutor. Therefore, an independent Public Prosecutor should provide the much-needed checks and balances to the enforcement authorities’ abuse of power.
Finally, although not directly linked to the abovementioned reform, we should not overlook the gaps in access to justice, especially for the poor, vulnerable and marginalised. Unfortunately, the right to legal representation as enshrined in Article 5, Clause 3 of the Federal Constitution is not fully realised. It is estimated that nearly 80% of accused persons appear without representation in court when they are charged. Even though legal aid services have been set up since 1971 with the establishment of Biro Bantuan Guaman (Legal Aid Bureau), currently known as the Jabatan Bantuan Guaman under Bahagian Hal-Ehwal Undang-Undang (BHEUU), the Yayasan Bantuan Guaman Kebangsaan (YBGK) in 2011, and the Bar Council’s Legal Aid scheme in 1983, many are still unaware.
An observation at court on any normal day will reveal that there are still many low-income households oblivious to the existence of YBGK to assist their family members who have been arrested and charged for various criminal offences. Furthermore, the current legal aid framework excludes vulnerable non-citizens such as migrant workers and refugees. While migrant workers can seek redress in labour courts with the assistance of union officials to represent them, refugees remain vulnerable to detention and often fall victim to unscrupulous employers who exploit their precarious, undocumented status. Therefore, reforms to the justice system need to look beyond the proposed separation of powers and enhance access to legal representation, leaving no one behind.
Therefore, while the separation of powers and roles of AGC is long overdue and welcomed, we need to argue for a comprehensive reform that considers the above-discussed concerns. Ending the conflict of interest between the roles of the AG and PP is not merely a task to fulfill an electoral promise before the next General Elections, but rather an extremely important institutional reform that affects all levels of society. Hence, we should not fall victim to political short-termism, whereby elected representatives prioritise immediate, visible policy outcomes over long-term structural effectiveness to satisfy electoral expectations and strengthen political legitimacy among constituents in view of upcoming elections.
Sivarajan A
Central Committee Member
Parti Sosialis Malaysia
15 May 2026.