Report written for BERSIH 2.0
Executive Summary
• There are two main models of the office o... more Report written for BERSIH 2.0
Executive Summary
• There are two main models of the office of Attorney General (‘AG’) in the Commonwealth: the political or politico-legal AG, which developed in the Westminster Parliament, and the non-political or purely legal AG, which was the norm in most British colonies.
• In the politico-legal model (eg, in England, Canada, Australia, etc), the AG is a member of the Legislature as well as a minister of the Crown, and is answerable to Parliament for various aspects of the administration of criminal justice. The AG may in some countries also be a full member of the Cabinet: eg, as Minister for Law/Justice.
• In the purely legal model (eg, in India, Pakistan, Singapore, etc), the AG is not a voting member of the Legislature or of the Executive, but may have the right to attend meetings of either body ex officio, on a regular basis or as invited from time to time. The AG may be a career legal officer or be appointed from the Bar, and may in some countries also hold the office of Public Prosecutor (‘PP’).
• While the two models of the office of AG are equally legitimate, several countries that originally had a purely legal AG have shifted towards the politico-legal model (eg, New Zealand (‘NZ’) in 1877, Malaysia in 1963, Kenya in 2010, etc). In the case of Malaysia, this was followed by a shift back towards a purely legal AG.
• Regardless of the model of AG that is adopted, recognition of the importance of preventing political influence or other interference in criminal prosecutions has led to the establishment in many countries of a separate Director of Public Prosecutions (‘DPP’) with a greater degree of separation and independence from the Executive (eg, England in 1879, Australia in 1983, Canada in 2006, Kenya in 2010, etc).
• The importance of shielding criminal prosecutions in Malaysia from political influence and interference has come to even greater public significance due to the absence/failures of constitutional safeguards during the 1MDB affair and the dismissal of the AG by former PM Najib Tun Razak, as well as other instances of selective prosecution and unequal enforcement of the criminal law.
Recommendations
Separation of AG & PP
• In order to shield criminal prosecutions from political influence or other interference, the PP should be a constitutional officer separate from the AG. As the AG is a political appointee without security of tenure, he should cease to hold the office of PP and to be a member of any Service Commission. His authority should extend only to the Federal AG’s Chambers (‘AGC’) and not to the rest of the Legal Service (‘LS’).
• There should be no major changes to the current provisions for the selection and tenure of the AG. The Prime Minister (‘PM’) should have the flexibility to choose the best candidates for the office of AG and for the position of Minister of Law/Justice, and should be able to combine both positions in one individual, as he may judge appropriate. However, Parliament should have the right to require the PM to submit his advice for the approval of a parliamentary committee.
• Whether or not the AG is a member of the Cabinet or of the Legislature, he should attend Cabinet on a regular basis, and should also have the right, like a Cabinet minister, to participate ex officio in the proceedings of both Houses of Parliament. If, however, the AG is appointed Minister of Law/Justice, then he must be a member of one or other House.
• The PP should be appointed by the Yang di-Pertuan Agong (‘YDPA’) upon the recommendation of the appropriate Service Commission, which may after considering the advice of the PM be returned to the Commission once for reconsideration. Parliament should have the right to require the PM, before advising the YDPA, to submit his advice for the approval of a parliamentary committee.
• The PP should be appointed for a single term of eight years, subject to the same maximum retirement age, and with the same security of tenure, as a Federal Court (‘FCt’) judge.
• Parliament, in the exercise of its legislative jurisdiction over criminal law and criminal procedure, should have the power to require the PP to consult with the AG in particular cases, but must not require the PP to act subject to the consent or under the direction or control of any person. The PP should, however, submit an annual report to Parliament and appear in person before parliamentary committees whenever required to answer questions or give evidence.
• Parliament should have the power to authorize specialist agencies (eg, the Malaysian Anti-Corruption Commission (‘MACC’), the Securities Commission, local authorities, etc) to initiate and conduct prosecutions for specific offences within their remit, but the PP should have power, with the permission of the court or of the agency concerned, to take over any prosecution.
Separation of the Judicial and Legal Services
• The Judicial & Legal Service (‘JLS’) should be divided into a Judicial Service (‘JS’) and a separate LS, each with its own Service Commission. The former should include all court registrars, sessions court judges and magistrates, while the latter should include all federal counsel, deputy and assistant PPs and other legal officers.
• The Judicial Service Commission (‘JSC’) should revert to being chaired by the Chief Justice (‘CJ’) as the head of the judiciary, with other judicial office-holders and the deputy chairman of the Public Services Commission (‘PSC’) as ex officio members.
• The JSC should also regain responsibility for nominating members of tribunals for the removal of superior court judges and for proposing any suspensions pending the decisions of such tribunals. Responsibility for nominating superior court judges should either be returned to the JSC or vested in a separate Judicial Appointments Commission.
• The Legal Service Commission (‘LSC’) should cease to have the AG as an ex officio member, with his place being taken by the Solicitor General (‘SG’) and the PP. It should be responsible for the appointments, promotions, transfers and discipline of all members of the LS. It should also have responsibility for nominating members of a tribunal for the removal of the PP and for proposing any suspension pending the decision of such a tribunal.
• The AG and SG should not have authority over members of the LS appointed or seconded to serve the PP’s Chambers, State Governments, Parliament or independent Commissions.
• Law reform should continue to be the responsibility of individual ministries, working together with the Federal AGC. However, a Law Reform Commission (‘LRC’) consisting of legal academics and retired judges should be created, under the oversight of the Ministry of Law/Justice, to make proposals for law reform, which should be laid before Parliament.
This study examines the contest for judicial power in India and Malaysia, two countries with a sh... more This study examines the contest for judicial power in India and Malaysia, two countries with a shared legal and constitutional tradition, focusing in particular on the Indian Emergency of 1975-7 and the Malaysian constitutional crisis of 1988, in which the judiciary came under attack by the executive and legislature. Using a realist model of judicial power, it considers the factors that have enabled the Indian judiciary to survive the Emergency and emerge as one of the most activist and powerful judiciaries in the world, and conversely those factors that have caused the Malaysian judiciary to descend into executive subservience and disrepute. It concludes that while institutional and structural factors, as well as legal and political culture, have played a part, in the final analysis it is the concentration of political power of the two countries that has had a predominant effect on the two judiciaries, and that it is the electorate that must assume responsibility for creating the political space within which the judiciary can exercise its role in constitutional review and the protection of fundamental rights.
Report written for BERSIH 2.0
Executive Summary
• There are two main models of the office o... more Report written for BERSIH 2.0
Executive Summary
• There are two main models of the office of Attorney General (‘AG’) in the Commonwealth: the political or politico-legal AG, which developed in the Westminster Parliament, and the non-political or purely legal AG, which was the norm in most British colonies.
• In the politico-legal model (eg, in England, Canada, Australia, etc), the AG is a member of the Legislature as well as a minister of the Crown, and is answerable to Parliament for various aspects of the administration of criminal justice. The AG may in some countries also be a full member of the Cabinet: eg, as Minister for Law/Justice.
• In the purely legal model (eg, in India, Pakistan, Singapore, etc), the AG is not a voting member of the Legislature or of the Executive, but may have the right to attend meetings of either body ex officio, on a regular basis or as invited from time to time. The AG may be a career legal officer or be appointed from the Bar, and may in some countries also hold the office of Public Prosecutor (‘PP’).
• While the two models of the office of AG are equally legitimate, several countries that originally had a purely legal AG have shifted towards the politico-legal model (eg, New Zealand (‘NZ’) in 1877, Malaysia in 1963, Kenya in 2010, etc). In the case of Malaysia, this was followed by a shift back towards a purely legal AG.
• Regardless of the model of AG that is adopted, recognition of the importance of preventing political influence or other interference in criminal prosecutions has led to the establishment in many countries of a separate Director of Public Prosecutions (‘DPP’) with a greater degree of separation and independence from the Executive (eg, England in 1879, Australia in 1983, Canada in 2006, Kenya in 2010, etc).
• The importance of shielding criminal prosecutions in Malaysia from political influence and interference has come to even greater public significance due to the absence/failures of constitutional safeguards during the 1MDB affair and the dismissal of the AG by former PM Najib Tun Razak, as well as other instances of selective prosecution and unequal enforcement of the criminal law.
Recommendations
Separation of AG & PP
• In order to shield criminal prosecutions from political influence or other interference, the PP should be a constitutional officer separate from the AG. As the AG is a political appointee without security of tenure, he should cease to hold the office of PP and to be a member of any Service Commission. His authority should extend only to the Federal AG’s Chambers (‘AGC’) and not to the rest of the Legal Service (‘LS’).
• There should be no major changes to the current provisions for the selection and tenure of the AG. The Prime Minister (‘PM’) should have the flexibility to choose the best candidates for the office of AG and for the position of Minister of Law/Justice, and should be able to combine both positions in one individual, as he may judge appropriate. However, Parliament should have the right to require the PM to submit his advice for the approval of a parliamentary committee.
• Whether or not the AG is a member of the Cabinet or of the Legislature, he should attend Cabinet on a regular basis, and should also have the right, like a Cabinet minister, to participate ex officio in the proceedings of both Houses of Parliament. If, however, the AG is appointed Minister of Law/Justice, then he must be a member of one or other House.
• The PP should be appointed by the Yang di-Pertuan Agong (‘YDPA’) upon the recommendation of the appropriate Service Commission, which may after considering the advice of the PM be returned to the Commission once for reconsideration. Parliament should have the right to require the PM, before advising the YDPA, to submit his advice for the approval of a parliamentary committee.
• The PP should be appointed for a single term of eight years, subject to the same maximum retirement age, and with the same security of tenure, as a Federal Court (‘FCt’) judge.
• Parliament, in the exercise of its legislative jurisdiction over criminal law and criminal procedure, should have the power to require the PP to consult with the AG in particular cases, but must not require the PP to act subject to the consent or under the direction or control of any person. The PP should, however, submit an annual report to Parliament and appear in person before parliamentary committees whenever required to answer questions or give evidence.
• Parliament should have the power to authorize specialist agencies (eg, the Malaysian Anti-Corruption Commission (‘MACC’), the Securities Commission, local authorities, etc) to initiate and conduct prosecutions for specific offences within their remit, but the PP should have power, with the permission of the court or of the agency concerned, to take over any prosecution.
Separation of the Judicial and Legal Services
• The Judicial & Legal Service (‘JLS’) should be divided into a Judicial Service (‘JS’) and a separate LS, each with its own Service Commission. The former should include all court registrars, sessions court judges and magistrates, while the latter should include all federal counsel, deputy and assistant PPs and other legal officers.
• The Judicial Service Commission (‘JSC’) should revert to being chaired by the Chief Justice (‘CJ’) as the head of the judiciary, with other judicial office-holders and the deputy chairman of the Public Services Commission (‘PSC’) as ex officio members.
• The JSC should also regain responsibility for nominating members of tribunals for the removal of superior court judges and for proposing any suspensions pending the decisions of such tribunals. Responsibility for nominating superior court judges should either be returned to the JSC or vested in a separate Judicial Appointments Commission.
• The Legal Service Commission (‘LSC’) should cease to have the AG as an ex officio member, with his place being taken by the Solicitor General (‘SG’) and the PP. It should be responsible for the appointments, promotions, transfers and discipline of all members of the LS. It should also have responsibility for nominating members of a tribunal for the removal of the PP and for proposing any suspension pending the decision of such a tribunal.
• The AG and SG should not have authority over members of the LS appointed or seconded to serve the PP’s Chambers, State Governments, Parliament or independent Commissions.
• Law reform should continue to be the responsibility of individual ministries, working together with the Federal AGC. However, a Law Reform Commission (‘LRC’) consisting of legal academics and retired judges should be created, under the oversight of the Ministry of Law/Justice, to make proposals for law reform, which should be laid before Parliament.
This study examines the contest for judicial power in India and Malaysia, two countries with a sh... more This study examines the contest for judicial power in India and Malaysia, two countries with a shared legal and constitutional tradition, focusing in particular on the Indian Emergency of 1975-7 and the Malaysian constitutional crisis of 1988, in which the judiciary came under attack by the executive and legislature. Using a realist model of judicial power, it considers the factors that have enabled the Indian judiciary to survive the Emergency and emerge as one of the most activist and powerful judiciaries in the world, and conversely those factors that have caused the Malaysian judiciary to descend into executive subservience and disrepute. It concludes that while institutional and structural factors, as well as legal and political culture, have played a part, in the final analysis it is the concentration of political power of the two countries that has had a predominant effect on the two judiciaries, and that it is the electorate that must assume responsibility for creating the political space within which the judiciary can exercise its role in constitutional review and the protection of fundamental rights.
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Papers by Andrew Yong
Executive Summary
• There are two main models of the office of Attorney General (‘AG’) in the Commonwealth: the political or politico-legal AG, which developed in the Westminster Parliament, and the non-political or purely legal AG, which was the norm in most British colonies.
• In the politico-legal model (eg, in England, Canada, Australia, etc), the AG is a member of the Legislature as well as a minister of the Crown, and is answerable to Parliament for various aspects of the administration of criminal justice. The AG may in some countries also be a full member of the Cabinet: eg, as Minister for Law/Justice.
• In the purely legal model (eg, in India, Pakistan, Singapore, etc), the AG is not a voting member of the Legislature or of the Executive, but may have the right to attend meetings of either body ex officio, on a regular basis or as invited from time to time. The AG may be a career legal officer or be appointed from the Bar, and may in some countries also hold the office of Public Prosecutor (‘PP’).
• While the two models of the office of AG are equally legitimate, several countries that originally had a purely legal AG have shifted towards the politico-legal model (eg, New Zealand (‘NZ’) in 1877, Malaysia in 1963, Kenya in 2010, etc). In the case of Malaysia, this was followed by a shift back towards a purely legal AG.
• Regardless of the model of AG that is adopted, recognition of the importance of preventing political influence or other interference in criminal prosecutions has led to the establishment in many countries of a separate Director of Public Prosecutions (‘DPP’) with a greater degree of separation and independence from the Executive (eg, England in 1879, Australia in 1983, Canada in 2006, Kenya in 2010, etc).
• The importance of shielding criminal prosecutions in Malaysia from political influence and interference has come to even greater public significance due to the absence/failures of constitutional safeguards during the 1MDB affair and the dismissal of the AG by former PM Najib Tun Razak, as well as other instances of selective prosecution and unequal enforcement of the criminal law.
Recommendations
Separation of AG & PP
• In order to shield criminal prosecutions from political influence or other interference, the PP should be a constitutional officer separate from the AG. As the AG is a political appointee without security of tenure, he should cease to hold the office of PP and to be a member of any Service Commission. His authority should extend only to the Federal AG’s Chambers (‘AGC’) and not to the rest of the Legal Service (‘LS’).
• There should be no major changes to the current provisions for the selection and tenure of the AG. The Prime Minister (‘PM’) should have the flexibility to choose the best candidates for the office of AG and for the position of Minister of Law/Justice, and should be able to combine both positions in one individual, as he may judge appropriate. However, Parliament should have the right to require the PM to submit his advice for the approval of a parliamentary committee.
• Whether or not the AG is a member of the Cabinet or of the Legislature, he should attend Cabinet on a regular basis, and should also have the right, like a Cabinet minister, to participate ex officio in the proceedings of both Houses of Parliament. If, however, the AG is appointed Minister of Law/Justice, then he must be a member of one or other House.
• The PP should be appointed by the Yang di-Pertuan Agong (‘YDPA’) upon the recommendation of the appropriate Service Commission, which may after considering the advice of the PM be returned to the Commission once for reconsideration. Parliament should have the right to require the PM, before advising the YDPA, to submit his advice for the approval of a parliamentary committee.
• The PP should be appointed for a single term of eight years, subject to the same maximum retirement age, and with the same security of tenure, as a Federal Court (‘FCt’) judge.
• Parliament, in the exercise of its legislative jurisdiction over criminal law and criminal procedure, should have the power to require the PP to consult with the AG in particular cases, but must not require the PP to act subject to the consent or under the direction or control of any person. The PP should, however, submit an annual report to Parliament and appear in person before parliamentary committees whenever required to answer questions or give evidence.
• Parliament should have the power to authorize specialist agencies (eg, the Malaysian Anti-Corruption Commission (‘MACC’), the Securities Commission, local authorities, etc) to initiate and conduct prosecutions for specific offences within their remit, but the PP should have power, with the permission of the court or of the agency concerned, to take over any prosecution.
Separation of the Judicial and Legal Services
• The Judicial & Legal Service (‘JLS’) should be divided into a Judicial Service (‘JS’) and a separate LS, each with its own Service Commission. The former should include all court registrars, sessions court judges and magistrates, while the latter should include all federal counsel, deputy and assistant PPs and other legal officers.
• The Judicial Service Commission (‘JSC’) should revert to being chaired by the Chief Justice (‘CJ’) as the head of the judiciary, with other judicial office-holders and the deputy chairman of the Public Services Commission (‘PSC’) as ex officio members.
• The JSC should also regain responsibility for nominating members of tribunals for the removal of superior court judges and for proposing any suspensions pending the decisions of such tribunals. Responsibility for nominating superior court judges should either be returned to the JSC or vested in a separate Judicial Appointments Commission.
• The Legal Service Commission (‘LSC’) should cease to have the AG as an ex officio member, with his place being taken by the Solicitor General (‘SG’) and the PP. It should be responsible for the appointments, promotions, transfers and discipline of all members of the LS. It should also have responsibility for nominating members of a tribunal for the removal of the PP and for proposing any suspension pending the decision of such a tribunal.
• The AG and SG should not have authority over members of the LS appointed or seconded to serve the PP’s Chambers, State Governments, Parliament or independent Commissions.
• Law reform should continue to be the responsibility of individual ministries, working together with the Federal AGC. However, a Law Reform Commission (‘LRC’) consisting of legal academics and retired judges should be created, under the oversight of the Ministry of Law/Justice, to make proposals for law reform, which should be laid before Parliament.
Executive Summary
• There are two main models of the office of Attorney General (‘AG’) in the Commonwealth: the political or politico-legal AG, which developed in the Westminster Parliament, and the non-political or purely legal AG, which was the norm in most British colonies.
• In the politico-legal model (eg, in England, Canada, Australia, etc), the AG is a member of the Legislature as well as a minister of the Crown, and is answerable to Parliament for various aspects of the administration of criminal justice. The AG may in some countries also be a full member of the Cabinet: eg, as Minister for Law/Justice.
• In the purely legal model (eg, in India, Pakistan, Singapore, etc), the AG is not a voting member of the Legislature or of the Executive, but may have the right to attend meetings of either body ex officio, on a regular basis or as invited from time to time. The AG may be a career legal officer or be appointed from the Bar, and may in some countries also hold the office of Public Prosecutor (‘PP’).
• While the two models of the office of AG are equally legitimate, several countries that originally had a purely legal AG have shifted towards the politico-legal model (eg, New Zealand (‘NZ’) in 1877, Malaysia in 1963, Kenya in 2010, etc). In the case of Malaysia, this was followed by a shift back towards a purely legal AG.
• Regardless of the model of AG that is adopted, recognition of the importance of preventing political influence or other interference in criminal prosecutions has led to the establishment in many countries of a separate Director of Public Prosecutions (‘DPP’) with a greater degree of separation and independence from the Executive (eg, England in 1879, Australia in 1983, Canada in 2006, Kenya in 2010, etc).
• The importance of shielding criminal prosecutions in Malaysia from political influence and interference has come to even greater public significance due to the absence/failures of constitutional safeguards during the 1MDB affair and the dismissal of the AG by former PM Najib Tun Razak, as well as other instances of selective prosecution and unequal enforcement of the criminal law.
Recommendations
Separation of AG & PP
• In order to shield criminal prosecutions from political influence or other interference, the PP should be a constitutional officer separate from the AG. As the AG is a political appointee without security of tenure, he should cease to hold the office of PP and to be a member of any Service Commission. His authority should extend only to the Federal AG’s Chambers (‘AGC’) and not to the rest of the Legal Service (‘LS’).
• There should be no major changes to the current provisions for the selection and tenure of the AG. The Prime Minister (‘PM’) should have the flexibility to choose the best candidates for the office of AG and for the position of Minister of Law/Justice, and should be able to combine both positions in one individual, as he may judge appropriate. However, Parliament should have the right to require the PM to submit his advice for the approval of a parliamentary committee.
• Whether or not the AG is a member of the Cabinet or of the Legislature, he should attend Cabinet on a regular basis, and should also have the right, like a Cabinet minister, to participate ex officio in the proceedings of both Houses of Parliament. If, however, the AG is appointed Minister of Law/Justice, then he must be a member of one or other House.
• The PP should be appointed by the Yang di-Pertuan Agong (‘YDPA’) upon the recommendation of the appropriate Service Commission, which may after considering the advice of the PM be returned to the Commission once for reconsideration. Parliament should have the right to require the PM, before advising the YDPA, to submit his advice for the approval of a parliamentary committee.
• The PP should be appointed for a single term of eight years, subject to the same maximum retirement age, and with the same security of tenure, as a Federal Court (‘FCt’) judge.
• Parliament, in the exercise of its legislative jurisdiction over criminal law and criminal procedure, should have the power to require the PP to consult with the AG in particular cases, but must not require the PP to act subject to the consent or under the direction or control of any person. The PP should, however, submit an annual report to Parliament and appear in person before parliamentary committees whenever required to answer questions or give evidence.
• Parliament should have the power to authorize specialist agencies (eg, the Malaysian Anti-Corruption Commission (‘MACC’), the Securities Commission, local authorities, etc) to initiate and conduct prosecutions for specific offences within their remit, but the PP should have power, with the permission of the court or of the agency concerned, to take over any prosecution.
Separation of the Judicial and Legal Services
• The Judicial & Legal Service (‘JLS’) should be divided into a Judicial Service (‘JS’) and a separate LS, each with its own Service Commission. The former should include all court registrars, sessions court judges and magistrates, while the latter should include all federal counsel, deputy and assistant PPs and other legal officers.
• The Judicial Service Commission (‘JSC’) should revert to being chaired by the Chief Justice (‘CJ’) as the head of the judiciary, with other judicial office-holders and the deputy chairman of the Public Services Commission (‘PSC’) as ex officio members.
• The JSC should also regain responsibility for nominating members of tribunals for the removal of superior court judges and for proposing any suspensions pending the decisions of such tribunals. Responsibility for nominating superior court judges should either be returned to the JSC or vested in a separate Judicial Appointments Commission.
• The Legal Service Commission (‘LSC’) should cease to have the AG as an ex officio member, with his place being taken by the Solicitor General (‘SG’) and the PP. It should be responsible for the appointments, promotions, transfers and discipline of all members of the LS. It should also have responsibility for nominating members of a tribunal for the removal of the PP and for proposing any suspension pending the decision of such a tribunal.
• The AG and SG should not have authority over members of the LS appointed or seconded to serve the PP’s Chambers, State Governments, Parliament or independent Commissions.
• Law reform should continue to be the responsibility of individual ministries, working together with the Federal AGC. However, a Law Reform Commission (‘LRC’) consisting of legal academics and retired judges should be created, under the oversight of the Ministry of Law/Justice, to make proposals for law reform, which should be laid before Parliament.