Exploring contrasts: the Faculty of Law welcomes delegates from Malaysia to discuss prosecutorial independence

Faculty of Law - Civil Law Section
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Delegation from the Legal Affairs Division of the Prime Minister’s Department of Malaysia and from the Universiti Malaya
On May 6, the Faculty of Law welcomed a delegation from the Legal Affairs Division of the Prime Minister’s Department of Malaysia and from the Universiti Malaya for a rare chance to dig into the complex issues of prosecutorial discretion and independence with legal experts hailing from different parts of the world.

Led by the Honourable Dato’ Sri Azalina Othman Said, Minister in the Prime Minister’s Department for Law and Institutional Reform, the delegates from Malaysia arrived with a purpose: they wished to exchange with scholars from Canada on the issue of prosecutorial independence, exploring, specifically, different perspectives on how an attorney general’s office and roles can be structured in relation to the duties of a public prosecutor.

In Canada, the federal attorney general traditionally also serves as the Minister of Justice and oversees the prosecution service while being directly accountable to parliament and the public. In 2006, Canada reformed its federal model with the Director of Public Prosecutions Act, establishing the Office of the Director of Public Prosecution, which structurally separates the prosecution function from the legal and policy activities of the Department of Justice. This reform was intended to reinforce prosecutorial independence. The director initiates and conducts prosecutions and intervenes in matters of public interest, but the attorney general maintains oversight powers over the director. At the provincial level, there are separate prosecution services in Quebec and Nova Scotia.

In Malaysia, the attorney general serves as the head of the Judicial and Legal Service. Unlike the structure in Canada, the federal prosecution arm lies within the attorney general's chambers. There have been calls from various stakeholders within Malaysia for the separation of the functions of the attorney general and the public prosecutor to prevent the possibility of government interference in public prosecutions. As Canada has experience with separating these functions, the Malaysian delegation arrived at uOttawa with the goal of exploring different perspectives on the matter.

Professor Jennifer Quaid, Vice-Dean of Research for the Civil Law Section, opened the proceedings by calling attention to the ways in which Canada’s system has been tested, specifically pointing to the relatively recent case involving SNC-Lavalin, which highlighted how high-level prosecutions might become subject to political interference. That instance, which led to a political scandal within the Prime Minister’s Office and the eventual resignation of the attorney general, led to a review of the various roles at play by the Honourable Anne McLellan. The McLellan report recommended several changes regarding how these distinct roles are defined, but ultimately concluded that Canada’s system had worked as intended in the SNC-Lavalin case and that no structural changes were needed to protect prosecutorial independence. Several scholars from the University of Ottawa’s Faculty of Law participated in consultations for the McLellan report at a session organized in 2019 by former Dean and leading constitutional law researcher Adam Dodek, including Professor Craig Forcese, Professor Errol Mendes and Professor Quaid. 

Azalina Othman Said and Jennifer Quaid
The Honourable Dato’ Sri Azalina Othman Said with Professor Jennifer Quaid

The discussion was then picked up by Professor Emeritus Datuk Dr. Shad Saleem Faruqi, a Malaysian legal scholar and professor of law at the Universiti Malaya, currently holding the Tunku Abdul Rahman Chair as Professor of Constitutional Law. He highlighted the fusion between the roles of attorney general and public prosecutor in Malaysia and discussed how this structure casts doubt on the neutrality and integrity of the attorney general, which has led to allegations of corruption. Constitutional amendment is needed, he suggested, to separate the two important roles.

The discussion evolved from there, with Dr. Jason Chuah, Dean of Law at the Universiti Malaya, moderating a lively discussion involving experts from both Canada and Malaysia. The Canadian panellists included, from the University of Ottawa, Visiting Professor and Executive-in-Residence Stephen Bindman, Professor John Packer and Professor Jamie Liew; Professor Bruce Archibald and Professor Andrew Martin from Dalhousie University; Professor Martine Valois from the Université de Montréal; and Mr. Anil Kapoor, criminal lawyer and Adjunct Professor at Osgoode Hall Law School. They raised a broad range of interesting issues, from the accountability of those who hold political office and the challenges of upholding the rule of law, to the pros and cons of a completely independent public prosecution system. Professors Archibald, Martin, Valois and Kapoor had all been participants in the McLellan report consultations.

For their part, the Malaysian panellists included Minister Azalina Othman Said; the Honourable Mr. William Leong Jee Keen, Chairman of the Special Select Committee on Human Rights, Election and Institutional Reform; Mr. Lim Wei Jiet, lawyer and co-author of a policy paper on the topic; Ms. Maha Balakrishnan of the All-Party Parliamentary Group of Malaysia on Integrity, Governance and Anti-Corruption; Professor Philip Koh Tong Ngee of the Universiti Malaya; Mr. Andrew Khoo, a lawyer specializing in constitutional law issues; and Mr. Jerald Joseph of the Platform for Reform. These experts raised similarly profound points about the complexity of institutional change, the need for mechanisms that can enable total transparency in public prosecutions, the necessity of taking into account public policy considerations, and the need to have a prosecutorial arm that works in the public interest. 

In the end, all participants benefitted from the multitude of perspectives on offer. There may be no one-size-fits-all strategy, but the discussion seemed to suggest that structural boundaries alone cannot solve this complex problem without integrity and accountability on the part of the people who hold these important offices. Ultimately, education and making people aware of the nuances inherent in a public prosecution service is of fundamental importance in building public trust. 

The Malaysian delegation also met with Canadian lawmakers while in Ottawa to further examine different points of view. Their plan is to next undertake similar exploratory meetings with experts in the UK and Australia.

The University of Ottawa’s Faculty of Law extends its sincere thanks to the representatives of the Universiti Malaya and the Legal Affairs Division of the Prime Minister’s Department of Malaysia for the chance to take part in these enriching conversations.