Legal expert warns parliamentary confirmation for public prosecutor could undermine independence and spark constitutional conflict, as lawmakers debate historic separation of powers.

PETALING JAYA: Giving Parliament a formal role in confirming the appointment of a public prosecutor (PP) would politicise the office and risk triggering a constitutional clash, a legal scholar said, as lawmakers prepare to debate a landmark amendment separating the roles of attorney general and public prosecutor.

Taylor’s University senior law lecturer Dr Wilson T.V. Tay said subjecting the PP’s appointment to parliamentary confirmation hearings could undermine the very independence the proposed reform is intended to secure.

His remarks come amid debate over whether the PP’s appointment should be subjected to parliamentary scrutiny under the proposed constitutional amendment.

Tay dismissed the need for parliamentary confirmation, describing it as unnecessary and constitutionally problematic.

“Firstly, Parliament itself is a political body and so making the appointment of the PP conditional on Parliament’s confirmation obviously politicises the process.”

He added that Malaysia’s constitutional practice does not suggest that Parliament operates independently of the executive.

“Parliament does not generally have a track record of acting independent of the executive branch’s will.

“In practice, all legislation passed consists of government bills. The government, through its majority, determines who presides as speaker and deputy speakers.

“Parliament has also never formally rejected a government bill or dismissed the government through a vote of no confidence.”

More significantly, Tay pointed to the wording of the proposed amendment, which states that the PP shall be appointed by the Yang di-Pertuan Agong “in His discretion”.

“Constitutionally, this is significant because under the proposed new Article 145A(1) – which sets out how the public prosecutor is to be appointed – the Agong would have the discretion to choose the candidate, as long as the person meets the qualifications and conditions stated in the Article.”

Introducing parliamentary confirmation, he cautioned, would create a direct institutional conflict.

“If Parliament is to subsequently ‘confirm’ an appointment made by the Agong, this would place Parliament in the invidious position of second-guessing His Majesty’s choice – would Members of Parliament actually be willing to do this?”

Conversely, he questioned the reverse scenario – if Parliament were to confirm a candidate but the Agong declined to appoint that person.

“Either way, the idea of Parliament exercising a ‘confirmatory’ power is not compatible with the Agong’s discretionary power, as contained in the current proposal.”

Tay also rejected suggestions that Parliament be empowered to initiate a tribunal process to remove a PP, warning that such authority would entangle the office in partisan politics.

“Allowing Parliament to initiate a tribunal to remove a PP would cause the office to be politicised to an unacceptable degree.”

He cautioned that the mechanism could become a campaign pledge.

“It might become an election promise that if a certain party or coalition is elected to power it will haul a PP with whose decisions it disagrees before a tribunal.

“The possibility that he (or she) might be taken before a tribunal if a certain political party wins should not be a consideration at all in the mind of a PP – yet it could be, if we create this power for Parliament.”

Instead, Tay maintained that Parliament’s proper role is oversight, not control over appointments or removals.

“The right balance is that Parliament – by virtue of its largely open, spontaneous proceedings – should be able to scrutinise the conduct of the PP from time to time.

“Parliament should remain true to its nature as an inherently political body.

“But it should not be turned into a tool for political parties to remove PPs they dislike, as that would undermine the very independence the reform seeks to establish for the office,” he said.

The constitutional amendment is scheduled for its second reading today.

 The Sun Malaysia