This article first appeared in Forum, The Edge Malaysia Weekly on June 22, 2026 - June 28, 2026

On June 22, when parliament reconvenes, it will take up one of the most significant constitutional amendments in the country’s recent history.

It concerns an arrangement most Malaysians have lived under their whole lives without ever quite noticing. Since Merdeka, one person has worn two very different hats.

The attorney-general is the government’s own lawyer, namely, its chief legal adviser, the person who guides ministers on what the law allows and defends the government in court.

But the same person is also the public prosecutor — the official who decides, for the whole country, who gets charged with a crime, and who does not.

Advising the government of the day is one job. Deciding whether anyone, including members of that government, or its opponents, should face criminal charges is quite another.

The amendment now before parliament would, for the first time since 1957, place those two jobs in two pairs of hands.

This arrangement was not a Malaysian invention, and it was not designed in bad faith. We inherited it from the Westminster tradition, where the attorney-general historically combined both functions.

At Independence, in a smaller and simpler government, it was an efficient design: one office, one set of lawyers, one clear line of legal authority. The Federal Constitution gave the attorney-general the power, exercisable at his discretion, to begin, conduct or end criminal prosecutions.

For decades the arrangement worked, and many who held the office served it honourably.

But over time, many countries that began with this model concluded that the two hats sat uneasily on one head, and moved to separate them in one form or another.

Malaysia has debated the same question across different governments and different political eras, without bringing it to a vote as a constitutional amendment.

It is important to be precise about what the concern is, because it is often misunderstood. The concern is not that any particular attorney-general has misused the power. It is that the structure itself asks one person to do two things that can pull in opposite directions.

Consider the position of an attorney-general, any attorney-general, asked to decide whether to prosecute a member of the government he advises or a prominent critic of it. However honestly that decision is made, one side or the other might suspect the worst. The adviser’s hat casts a shadow over the prosecutor’s decision.

That is the quiet cost of the current design, not necessarily injustice itself, but the standing suspicion of it. Public confidence in equal justice depends not only on decisions being made fairly, but on the public being able to see that nothing in the structure points the other way.

A structural problem calls for a structural answer. That is what the amendment attempts.

The Bill creates a new, separate constitutional office of public prosecutor, and moves the power over criminal prosecutions from the attorney-general to that new office.

The attorney-general remains the government’s legal adviser. The public prosecutor takes charge of prosecution decisions.

Just as important is how the new public prosecutor is chosen, because independence is decided at the moment of appointment.

Under the Bill as first tabled, the public prosecutor is appointed by the Yang di-Pertuan Agong, in His Majesty’s discretion, on the recommendation of the Judicial and Legal Service Commission, and after consultation with the Conference of Rulers.

Notice who is absent from that sentence: the prime minister. That is deliberate. A prosecutor appointed by the political leadership of the day might be seen as owing the office to it.

The Bill steers away from that, placing the appointment with the Yang di-Pertuan Agong, on the recommendation of a constitutional commission.

The office comes with structural safeguards, namely, a fixed seven-year term, with reappointment requiring fresh assessment rather than being automatic; a requirement of at least 10 years’ litigation experience; disqualification of serving members of parliament and state assemblies; and protections against removal at the executive’s discretion.

One question dominated the scrutiny that followed: How should so independent an office be held to account?

The answer, announced at the end of the committee’s work, is that parliament will have a role in holding the office accountable, with the full revised text to be presented when the Bill returns to the House.

Lawyers’ bodies and civil society continue to argue that the appointment and removal mechanisms should go further, and that scrutiny is healthy because, in a reform of this kind, the safeguards are the substance.

The journey of this Bill is itself worth understanding, because it shows the system working as it should.

When the Bill was first tabled in February, it drew genuine concerns — from civil society, from the opposition and from government backbenchers themselves — about how the new public prosecutor would be held accountable.

Those concerns had force, and parliament responded to them: The Bill was referred to a Special Select Committee of members of parliament drawn from both the government and opposition benches.

Over the months that followed, the committee heard from non-governmental organisations, legal bodies and experts and refined the Bill, including on the central question of accountability.

By May, the committee chair was able to announce that members from every party represented on it had agreed to the revised draft — a degree of cross-party consensus that is rare anywhere, and rarer still on a constitutional amendment.

A constitutional amendment requires a two-thirds majority of the Dewan Rakyat, which is a deliberately high bar that, in practice, requires broad attendance and support from both sides of the House.

Whether this one passes is for parliament to decide on the day.

But, the process that brought it to this point — tabled, challenged, scrutinised, revised and agreed upon across the aisle — is how constitutional change ought to happen.

It would be easy to file this away as lawyers’ business. It is not.

The power to charge a person with a crime is among the heaviest the state holds over any of us. The question of who wields it, and how they are appointed, is therefore not a technical question. It is a question about whether justice in Malaysia depends on who happens to be in power.

A separation of the two roles does not guarantee wisdom in every prosecutorial decision — no structure can. What it does is remove a structural shadow that has hung over the office for nearly 70 years, so that when the public prosecutor acts, no one can say the government’s own lawyer made the call.

Malaysia has debated this reform for a generation. On June 22, parliament will finally confront it, not as one party’s project, but as a proposal shaped and agreed upon by members from across the divide. Whatever each of us thinks of the politics of the day, that is a moment worth understanding.

The institutions we build are the ones that remain when the politics have moved on, and they belong, in the end, to all of us.

J J Chan is a barrister-at-law of the Honourable Society of Gray’s Inn, London, and an advocate and solicitor of the High Court of Malaya

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