Curbing 'dua darjat' for the common good

Ngeow Chow Ying 

It has been eight years since Malaysia’s democratic transition – eight years that brought us five prime ministers, three national coalitions, and a political landscape of bewildering complexity.

Many in Malaysia are confused and frustrated. That is understandable. But confusion should not be mistaken for stagnation, nor complexity for chaos.

Running beneath all of it is something more enduring: a chronic injustice that has troubled this nation for generations. And it is that injustice, and the progress we are finally making against it, that brings us here today.

Two classes

Let me explain what we mean by dua darjat.

Darjat means status or rank. Dua darjat – two ranks – describes a system where the law bends according to who you are.

Two fault lines define it: one between the elite and the ordinary person, and one within the elite itself, between those who hold power and those who challenge it. In fact, a political dissident can sometimes face harsher treatment than a common criminal. This is not just inequality. It is weaponised.

It is the product of 50 years of one-party rule, and it did not disappear when that era ended in 2018.

The pandemic made this viscerally clear. When ordinary people were penalised for breaking “movement control order” rules while the privileged were quietly let off, a phrase entered our national vocabulary and stayed there.

Since then, the examples have kept coming. The death of 13-year-old Zara Qairina at a Papar boarding school sparked protests not just out of grief, but out of fury – the fury of people who have learnt not to expect equal justice.

And the allegations of a “corporate mafia” scandal implicating the Malaysian Anti-Corruption Commission and in anti-money laundering unit is a reminder that dua darjat is not only a threat to the poor and powerless. When the system is corrupt, no one, not investors, not entrepreneurs, not any of us, is truly safe.

Curbing dua darjat

Dua darjat is a direct assault on the fourth principle of the Rukun Negara (National Principles): Kedaulatan undang-undang, the rule of law.

And here is the thing that many people miss: it threatens everyone. Not just the poor or powerless but everyone, except those who control the enforcement agencies themselves.

And in today’s Malaysia, where power changes hands frequently, even that exception is shrinking. No party, no coalition, no clan can count on being permanently protected.

The musical chairs of politics means the weapon of dua darjat can be turned on anyone at any time. Politicians, businesspeople, ordinary people, the economy – none of us are safe until this is curbed.

Now, dua darjat can enter the system at four stages: investigation, prosecution, trial and pardon. At any one of these points, inconsistent decisions made to benefit certain individuals or groups can tilt the scales of justice.

When justice is not seen to be done, or worse, when injustice is plainly visible, it confirms what many already fear: that there are two Malaysias – one where certain people are untouchable by the law, and one where the rest of us are ruled by it.

Today, we focus on one of those four stages: prosecution. Specifically, what does prosecutorial integrity look like, and how do we get there?

There are three elements we need to examine, that is, institutional independence, discretion and conduct, and accountability.

Prosecutorial independence

Separating the roles of attorney general and public prosecutor is necessary, but not sufficient.

The conflict of interest is plain: one person currently advises the government on legal matters and decides whether to press or withdraw charges. That cannot be right.

We welcome the “Madani” (trustworthy) government’s commitment to change this, and the Constitution Amendment Bill now before Parliament is a step forward.

But we have two serious concerns.

The proposed bill removes the prime minister’s power to nominate, which is good. But executive influence has not been removed, only repositioned: the new public prosecutor would still be nominated through a commission that includes the attorney general, who is appointed by the prime minister.

In addition, the Agong is given personal discretionary power over the final appointment. This risks drawing our constitutional monarchy into political controversy – a problem we must not create.

Prosecutorial accountability

With great power comes great responsibility. The prosecution sits at the centre of our law enforcement system, and it must answer to both Parliament and society.

Our research found that in the UK, Canada, Australia and Kenya, annual prosecution reports are tabled and debated in parliament. Malaysia should do the same.

But accountability cannot rest with Parliament alone. Civil society, corporate Malaysia and individuals must also actively monitor the exercise of prosecutorial power by watching for selective prosecution, selective impunity and the systemic inconsistency that produces dua darjat. Institutions do not hold themselves accountable. People do.

This is exactly why we built the Prosecutorial Accountability Watch database.

One of the biggest barriers to public scrutiny is informational asymmetry. The prosecution has the full picture. The public gets fragments, scattered news reports, legal jargon, incomplete records.

The result is either apathy or inaccuracy. Neither serves justice.

When we began tracing political corruption cases, we kept hitting dead ends.

Headlines announced discharges not amounting to acquittal and discharges amounting to acquittal – legal outcomes most people struggle to interpret – for politicians charged with corruption, criminal breach of trust and money laundering.

And all the while, the contrast was glaring: a single father jailed three months for stealing a bunch of bananas, while a powerful politician walks free after allegedly stealing RM50m.

Does this mean nothing has changed since 2018? That punishment is still determined not by the severity of a crime, but by the power of the person who commits it?

If people believe that – and many do – then cynicism is not surprising. Disillusionment is not surprising. And the appeal of populists who promise to burn the whole system down becomes very easy to understand.

Refusing to accept conclusions without evidence, Projek Sama commissioned legal scholar Farah Izzah Haron to compile and analyse political corruption cases, involving current and former elected politicians, from 2018 onwards.

The focus was deliberate: how many discharges not amounting to acquittal and discharges amounting to acquittal outcomes resulted from the prosecution withdrawing charges or from procedural failures like missed filing deadlines?

The goal was evidence over allegations, and clarity over cynicism.

The result is the Prosecutorial Accountability Watch (PAW) database — 32 cases, AI-powered and user-friendly, hosted by Malaysiakini.

Sungai bengkok titi lulus, Ada jalan dengan hajat. Pendakwaraya bebas tulus, Malaysia tanpa dua darjat.

– ProjectSama

Ngeow Chow Ying delivered these remarks at the launch of Projek Sama’s Prosecutorial Accountability Watch (PAW)

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