LETTER | Hayat welcomes the proposal to separate the roles of attorney-general and public prosecutor (PP), but cautions that the proposed amendment should not include the PP in the clemency process under Article 42 of the Federal Constitution.

The power of pardon within the Federal Constitution is one of the few and limited avenues for the prerogative of mercy to be exercised.

A pardon can be a means to address an inadvertent injustice due to changes in law and policy, a means for compassionate release for persons no longer suited to serve a prison sentence, or a means to provide flexibility and mercy within the criminal justice system in exceptional cases.

The PP plays the unique role of determining and leading public prosecutions. They should not have an additional role of determining whether any persons ought to be considered for a pardon as part of the Pardons Board.

The prosecution represents a different stage of the criminal justice process. They determine whether a person shall be prosecuted, and if the prosecution were successful, they would advocate for a more severe sentence.

Conflict of interest

With this role and responsibility assigned to them, having them in the Pardons Board would inevitably be a conflict of interest.

Further, when a person seeks a pardon, they are not required to have legal representation, nor are they permitted to present any legal argument to the Pardons Board.

In contrast, the presence of the PP would inadvertently provide a representation for the prosecution without offering the benefit of legal representation for those seeking a pardon.

Within the proposed framework, it would be more appropriate for the attorney-general, who shall then be the government's legal adviser, to maintain the role under Article 42.

Considering the potential impact on the criminal justice system as a whole, Hayat calls on the government to seek public feedback and review the proposed constitutional amendment before the matter is put to a vote.

Hayat is a Kuala Lumpur-based organisation committed to advocating for rehabilitative and restorative justice, with a focus on decarceration, drug policy reform, and the total abolition of the death penalty.

The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.