Attorney General's Chambers: Government Legal Adviser and Public Prosecutor

One man can decide whether you are brought before a criminal court — or set free without a single charge being filed. In Malaysia, that person is the Attorney General, and his power is born from a single article of the Federal Constitution.

Article 145 gives the Attorney General two hats worn at the same time. The first is the government lawyer’s hat: the nation’s highest legal adviser. The second is the Public Prosecutor’s hat: the holder of the power to institute and halt criminal prosecutions. Both hats sitting on the same head has been the source of years of debate — and now, the source of a major reform.

Who is the Attorney General, and how is he appointed?

The Attorney General is appointed by the Yang di-Pertuan Agong on the advice of the Prime Minister. The candidate cannot be just anyone: he must be someone qualified to be a Judge of the Federal Court — the highest eligibility requirement in the country’s judicial system.

Unlike a judge who enjoys security of tenure, the Attorney General’s position is closer to the executive. Article 145(5) of the Federal Constitution provides that the Attorney General holds office during the pleasure of the Yang di-Pertuan Agong and may resign at any time — rather than being protected by security of tenure like a judge. He is appointed on the advice of the Prime Minister and is answerable primarily to the government. The Attorney General heads the Attorney General’s Chambers (known in Malay as Jabatan Peguam Negara), an agency under the Prime Minister’s Department that brings together the corps of government lawyers who carry out the nation’s legal work.

What does the Attorney General do as government lawyer?

Under Article 145(2), the Attorney General’s duty is to advise the Yang di-Pertuan Agong, the Cabinet, or any minister on legal matters, and to carry out other duties of a legal nature.

In practice, this covers far more than giving opinions. The Attorney General’s Chambers drafts federal bills before they are tabled in Parliament, represents the government in civil and constitutional litigation, advises on international law and treaties, and revises and reprints the laws of Malaysia. The same government lawyers who defend the government’s interests in the civil courts work under the same institutional roof as those who prosecute crimes on behalf of the state.

What does it mean to be Public Prosecutor?

This is where the real power lies. Article 145(3) gives the Attorney General power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for an offence. Through this power, the Attorney General also serves as Malaysia’s Public Prosecutor.

Translated into everyday terms, that power means three things:

• Institute — deciding to bring charges against someone.
• Conduct — running the prosecution’s case in court.
• Discontinue — halting a case, including through a discharge not amounting to an acquittal (DNAA).

There is an important jurisdictional limit: this power does not apply to proceedings before the Syariah Courts, native courts, or courts-martial. Those courts operate under their own frameworks of authority.

Here is a summary of how Article 145 divides the Attorney General’s roles:

Clause	Role	Content
Article 145(1)	Appointment	Appointed by the Yang di-Pertuan Agong on the advice of the Prime Minister; must be qualified to be a Judge of the Federal Court
Article 145(2)	Legal adviser	Advises the YDPA, the Cabinet and ministers on legal matters
Article 145(3)	Public Prosecutor	Discretionary power to institute, conduct or discontinue criminal prosecutions
Exception to 145(3)	Jurisdictional limit	Does not apply in the Syariah Courts, native courts, or courts-martial

Can that power be challenged?

Generally, no — and that is the root of the criticism. The discretion under Article 145(3) is regarded as absolute and difficult to challenge in court.

The clearest example arose in a high-profile case involving a Prime Minister. In January 2016, the Attorney General of the day decided not to prosecute; the Bar Council later applied to review that decision, but the High Court refused leave for the judicial review application, and the subsequent appeals also failed. The principle is clear: the Attorney General’s absolute discretion not to prosecute was upheld.

The same power can swing the other way. After the change of government in 2018, a new Attorney General filed charges in a case that had previously not been prosecuted. The fact that the outcome of an investigation can change depending on who holds the office is precisely what has sparked calls for reform.

Why do people want to separate the two roles?

At the heart of the problem is a conflict of interest. The same individual is the government’s legal adviser and also makes prosecutorial decisions — even though he is appointed on the advice of the Prime Minister and is answerable primarily to the executive.

Transparency International Malaysia, in a statement as early as March 2016, argued that this arrangement makes prosecutorial decisions vulnerable to political influence, particularly in cases involving powerful figures. The proposed solution is to emulate the United Kingdom model, where the Attorney General does not interfere in the day-to-day operations of the Crown Prosecution Service. By separating the roles, prosecutorial decisions can be made “without fear or favour” and shielded from political interference.

What reform is under way?

The issue is now moving from debate to action. The Madani government’s institutional reform agenda was announced on 9 October 2023. Shortly afterwards, on 26 October 2023, the Special Select Committee on Human Rights, Elections and Institutional Reform (15th Parliament), chaired by William Leong Jee Keen, began studying how to separate the roles of Attorney General and Public Prosecutor and to recommend legal improvements.

By September 2025, the federal government approved the separation. According to The Edge Malaysia, constitutional amendments — touching Articles 145, 183 and 42 — are expected to be tabled in Parliament in 2026, followed by an omnibus Remuneration Bill and Law Reform (Public Prosecutor) Bill. The initiative is overseen by Minister Datuk Seri Azalina Othman Said and backed by Prime Minister Datuk Seri Anwar Ibrahim.

One key proposal: an independent Public Prosecutor could be appointed by the Yang di-Pertuan Agong on the advice of the Judicial and Legal Service Commission — a step that could shield the office from day-to-day political interference.

What comes next

The Attorney General’s dual-role structure has long been a feature of Malaysia’s constitutional order, but it may not remain so. Watch for the tabling of the constitutional amendments in Parliament: because they alter the Federal Constitution (Articles 145, 183 and 42), the amendments are subject to Article 159(3) and must be supported at the Second and Third Readings by the votes of not less than two-thirds of the total number of members of each House before they can take effect.

If you are following a high-profile criminal case, remember that the decision to prosecute — or to halt — still rests on the discretion of the Public Prosecutor for now. To understand the broader framework, read on about the Federal Constitution of Malaysia.