By : Nik Alia Hanafi, Associate/Knowledge Manager.
Editor : Datuk Hafarizam Harun, Managing Partner
“It is axiomatic, for a written constitution would be nothing more than a rope of sand without being supreme.”
Marbury v Madison (1803) 5 US 137
The Malaysian Bar or generally known as the Bar Council, has recently passed a motion to call for Tan Sri Mohamed Apandi Ali, the current Attorney General (“AG”) to resign permanently. The underlying justification echoed by the Malaysian Bar for its motion, revolves around the controversial news of 1MDB. The Bar viewed that it is in the position to protect the sanctity of the administration of justice, and thus had acted benevolently in the interest of the nation.
Albeit the noble move taken by The Bar, there is a certain group within the legal profession which has expressed an unfavorable response towards the move namely The Judicial and Legal Service Officers Association of Malaysia (JALSOA), quoting that the move is “obstructing the exercise of powers and discretion of the AG as provided by Clause (3) of Article 145 of the Federal Constitution,". On the other hand, the Bar Council has taken its dissatisfaction to a judicial level by filing a judicial review application in the court asking for review of decision of the AG in closing the case relating to Prime Minister and 1MDB, where the AG decided not to initiate any proceedings against the Prime Minister.
As a citizen of Malaysia, one may wonder while reading the news today; what will happen next?
Who Appoints Attorney General?
To truly understand the implication of the whole drama, one may need to see “the bigger picture” of the whole process starting from the appointment of the AG. The overarching provision is embodied under Article 145 of Federal Constitution (“FC”). Any qualified person is appointed by Yang diPertuan Agong (“YDPA”), on the advice of the Prime Minister to hold the office of AG. He will continue holding the office at the pleasure of the YDPA. This is an embodiment of the conventional principals of the executive to appoint the AG and to some extend the concept of Constitutional Monarch in acting in accordance with the “advise” of the Head of the Government in executive matters except where His Royal Highness has clear prerogative powers. The significant feature to note is that, AG’s appointment, tenure and remuneration are on the patronage of the Executive (Prime Minister). According to Halsbury’s Laws of Malaysia (2004). Vol 2. Constitutional Law, Contempt of Court, Defamation, Powers of Attorney, Malayan Law Journal, it is even possible that a person may hold the dual charge of the office of the Attorney General as well as that of a minister.. In this light, although it can be said that the AG holds his office at the pleasure of the King, but in actual fact, the AG’s office is entirely at the executive patronage. Hence, any call to the King or to the court to interfere with this constitutional regulation would appear to undermine the sanctity of the Federal Constitution and its clear intent.
Who Then Will Remove Him?
Historically, the AG holds office until he reached the age of 65 and can only be removed on the same grounds and manner of the removal of a Federal Court Judge. After the amendment in 1960, the AG now holds the office at the discretion of YDPA, and there is no term of appointment being specified in the Constitution. AG will continue to hold office until he retires at the age 65 or he will be removed by YDPA, in pursuant to Article 145(5) of the FC. This again has to be read in light of the Executive’s right to select the AG and keep in his office at their discretion.
Duties & Powers of Attorney General
To understand the rationale of “power” conferred to the PM in regards to the appointment of the AG, one has to understand the role of AG under the notion of Parliamentary Democracy. Article 145(2) of the FC provides the powers and duties of the AG, and among others; to advise the YDPA or Ministers upon such legal matters as may be referred to him; to perform other duties of a legal character assigned by YDPA or the Cabinet; and to discharge such functions as maybe conferred on him by or under Federal constitution or any other written laws. The AG has to work alongside with the Executive in ensuring law and order. Hence, it is imperative that the AG should be a person who is able to discharge his duties, alongside with the government of the day. Even under the American Presidential System, the President has the absolute prerogative to elect the AG for the same reason.
One prominent feature about the office of AG is that, he is conferred with a discretionary power, under Article 145(3) of the FC to instituteproceedings for any offence other than proceedings before a Syariah court, a native court or a court martial. Further under Section 376 of the Criminal Procedure Code, the AG also acts as Public Prosecutor to initiate any criminal proceedings. On many accounts, there were already many historic reported cases on challenging the wide discretionary power of the AG, acting as Public Prosecutor; Long bin Samat v PP  1 MLJ 152, the Federal Court held that the trial in the Magistrate’s Court was not a nullity as the Public Prosecutor has wide discretionary power to institute, conduct or discontinue any proceeding for an offence under Article 145(3) of FC (See also Johnson Tan Han Seng v PP 2 MLJ 66; The Cheng Poh v PP 1 MLJ 50; PP v Lee Tin Bau 1MLJ 388).
There are many instances in reported cases where the AG himself appears in court to represent the government machineries and bodies. In fact, where cases involving constitutional matters or questions pertaining to authority and powers of institutions and statutory bodies, the AG will be involved directly in the cases as the outcome thereof may be of major significance to the legal system and governmental powers.
One would also wonder; does this mean that the AG may have to side with the government to save his office? In truth and blunt expression, it is possible for such situation to happen. This goes back to the underlying adversarial power vested in the Prime Minister in regards to the appointment of Attorney General. It is reasonable and conscionable to imply from Article 145 that Prime Minister would advise YdPA to appoint the AG based on preferences. The practice is not uncommon in countries practicing the Parliamentary Democratic system. The material issue is; the manner of exercising the system or else it would be a situation of lawlessness.
However, as in all offices of duty and trust, the core determination is with the elected people and party. The people have the right to vote, and every office has its time, place and accountability. Hence, this is when we have to look at independent institutions like the MACC. These institutions have to be empowered with independence to investigate and prosecute.
Unfettered Discretion of the AG: Unchallenged?
In light of the above explanation, one would now wonder on to what extent this “unfettered” discretion should be exercised. As what the jurisprudence aphorism connotes; absolute power corrupts absolutely, no power should be exercised without limitations and restrictions. Despite of the unchallenged discretion conferred to the AG, the judiciary would not tie its hands and cover their judicial eagle-eyes in cases where the discretion has been exercised arbitrarily and unreasonably.
For a matter of deliberation, it is also interesting to note on the position in the neighboring country, Singapore. In Singapore, the same concept lies under the realm of “Prosecutorial discretion”, vested in Article 35(8) of Singaporean Constitution; the Attorney-General shall have power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for any offence. Singaporean Court of Appeal in Ramalingam Ravinthran v The Attorney-General CM 60 of 2011, had cited the case of Law Society of Singapore v Tan Guat Neo Phyllis  2 SLR(R) 239, Chan Sek Keong CJ explained the effect of Art 35(8) of the Constitution (at ):
“In relation to public prosecutions, Art 35(8) makes it clear that the institution, conduct or discontinuance of any criminal proceedings is a matter for only the Attorney-General to decide. This means that except for unconstitutionality, the Attorney-General has an unfettered discretion as to when and how he exercises his prosecutorial powers.”
Equality before The Law
Federal Constitution provides every Malaysian citizen for equal rights under the law, which is entrenched under Article 8 of the FC. This must be read and construed harmoniously with other provisions in the Constitution itself, as it would be impossible and inconceivable to construe and interpret meaning of one provision without having to cross-refer to another. There should be no statutory provision construed in vacuum. (See Pengarah v Sri Lempah Enterprise Sn Bhd  1 MLJ 135). Quoting from MP Jain, Administrative Law of Malaysia and Singapore (3rdEdn, 1997) p 432:
“It is submitted that there is no inconsistency between arts 145(3) and 8 of the Federal Constitution, and both can be harmoniously interpreted, for it only means that the wide discretion conferred on the Attorney General by art 45 145(3) ought be subject to art 8.”
Why AG has not initiated any proceedings against PM
It is an apparent rule that AG has at its discretion to institute proceedings in relation to offence under the law. For instance, in criminal cases, AG has the power as the head of prosecutor to prosecute anyone so long as there is existence of credible evidence, “reasonably adequate to mount a case”. Again, the question of “reasonably adequate” comes into the picture and who then shall determine such amount and degree? The answer is with the AG’s discretion to institute and conduct. As what had been illustrated in PP v Datuk Harun Haji Idris  2 MLJ 116 per Abdoolcader J (as he was then) defining the term of “conduct”;
“It conveys the idea of leading and guiding, that is to say, the person who conducts the prosecution determines all important questions of policy involved in the courts of the trial and the attitude to be adopted by the prosecution towards material objections raised or demands made by the accused with respect to the evidence”.
Therefore, one can comprehend the process of instituting a proceeding against one person, is entirely up to the discretion of the AG. The over-riding principle to always be remembered is; the AG must exercise his discretion within limitations of the law.
The Legal Bearing of Motion Passed by The Bar Council
Bar Council has passed a motion to call for the AG’s resignation on the following reasons:
“(10) The Malay Mail Online report dated 3 December 2015 stated, amongst others, that (emphases added):
Prime Minister Datuk Seri NajibRazak was only acting on the Attorney General’s (AG) advice in declining explaining personally in Parliament the RM2.6 billion donation he received, Datuk Seri Azalina Othman [Minister in the Prime Minister’s Department] said today . . . . the federal government made a collective decision to issue a ministerial statement in their response to questions after AG Tan Sri Apandi Ali said Najib may be risking “subjudice” if he attempted to answer in person with investigations into the surrounding controversy still ongoing. “The AG is the government's lawyer. We are guided by his advice”…
(11) The Attorney General, whilst also acting as Public Prosecutor involved in the ongoing investigation which may lead to the prosecution of NajibTunRazak, Government of Malaysia, Government-Owned Companies and/or GLCs, should not also be providing legal advice to those being investigated?
(12) The results of the investigations of the MACC were submitted to the Public Prosecutor to consider commencement of trial, but as reported on 26 January 2016 in New Straits Times which stated, amongst others (emphasis added):
…Attorney-General Tan Sri Mohamed Apandi Ali said their investigation had showed that the prime minister had committed no wrongdoing in the cases. . . . “I am satisfied that there was no evidence to show that the donation was a form of gratification given corruptly. The evidence showed that the donation was not an inducement or reward for doing or forbearing in relation to his capacity as a prime minister,” he said. He said that investigation also showed that in Aug 2013, a sum of USD620 million (RM2.03 billion) was returned by Najib to the Saudi royal family, as the sum was not utilised.
No mention was made about what the monies were for, and for what were some of the monies utilised.
(23) The Attorney General, as such, has many roles and responsibilities, and some of these are competing obligations and, if exercised at the same time is impossible. It is absurd when the Attorney General is considering instituting criminal proceedings, and at the same time is also seen to be personally providing legal advice to the suspect(s) or the potential accused.
(24) The Federal Constitution, in Article 8, states that, “All persons are equal before the law and entitled to the equal protection of the law.” As such, it can be said that no one is above the law, even the Prime Minister or a government-owned legal entity. When a person and/or legal entity commits an offence, it is the Attorney General, without any other special consideration or treatment, to do the needful to institute, conduct or discontinue any proceedings for an offence.
It is hereby resolved:
(A) That the Malaysian Bar calls on Mohamed Apandi Ali to immediately resign as Attorney General, for the good of Malaysia, to restore public confidence and perception of the rule of law, in particular the administration of criminal justice in Malaysia.”
The President of the Bar had made it clear that this motion was a “call for resignation like any other call” where the Bar has no power or authority to push for the resignation of the current AG. As for the question whether it has a legal bearing, he stated that;
"It is coming from Malaysian Bar, which is the sole body representing practising lawyers in Malaysia. It certainly would have its bearing,"
"Based on the Legal Profession Act, the bar is obliged to uphold the rule of law. That is the mandate that we have,".
The Rule of Law&The Supremacy of the Constitution
The last heading would conclude the discussion above, where all the discussion deliberated herein has in fact rooted from one cardinal feature about our Constitution, that is; The Rule of Law. We may not need to go through the whole process of defining what is the meaning of the rule of law in a case law or even in any legal provisions. Needless to state, that it has been entrenched in Article 4 of the Constitution where it states that this Constitution is the supreme law of the Federation. It has also been pillared in “Rukun Negara” where it states as “Keluhuran Perlembagaan” and also “Kedaulatan Undang-undang”. These two concepts cannot exist in dichotomy; both must be construed harmoniously for the purpose of its feasibility and legal function.
Despite of the decision taken by the AG to not institute any proceedings against PM, this does not give him the libertyto act arbitrarily without taking due regards of the limitations of the law provided under the Constitution and also in any other laws. The AG owes a public duty towards the administration of justice, hence any abuse of his power and breach of duty, he will not be immune from the sanction of the laws and Constitution.
In light of the Bar Council’s motion, one could not help it but to enquire BC’s real intent of passing such motion. There is certain doubt as to the real understanding of the BC, as the renowned group in the legal fraternity, towards the principal of Constitutional Supremacy and the workings of the written constitution. Although, we understand the sentiments surrounding the allegations against 1MDB and the perceived connections with the PM, the BC should stand by the Law and not to incite any stands beyond the limits of the Constitution. The sanctity of our Constitution must always be preserved and not be tainted with any attempts to usurp enshrined principles of the rule of law and the supremacy which it bears.