Questions have been asked as to whether the Prime Minister could terminate the Attorney General’s appointment without convening a tribunal similar to the one required to sack a Judge.
The answer is yes, apparently he can.
The question was asked because of the curious wording of clause (6) of Article 145 of the Constitution.
Clause (1) provides that the Attorney General must be “qualified to be a judge of the Federal Court” before he can be appointed as such.
Clause (5) says that
“(5) Subject to Clause (6), the Attorney General shall hold office during the pleasure of the Yang di-Pertuan Agong and may at any time resign his office and, unless he is a member of the Cabinet, shall receive such remuneration as the Yang di-Pertuan Agong may determine.”
[Emphasis supplied]
The curiosity is clause (6) which provides as follows:
“(6) The person holding the office of Attorney General immediately prior to the coming into operation of this Article shall continue to hold the office on terms and conditions not less favourable than those applicable to him immediately before such coming into operation and shall not be removed from office except on the like grounds and in the like manner as a judge of the Federal Court.”
The eagle eyed reader will note that clause (6) on its face applies to the one person who occupied the position of Attorney General “prior to the coming into operation of this Article”.
Some have argued that the second part of clause (6) should be read separately (in legalese, “disjunctively”) from its earlier part.
This seems like a bit of a stretch. All becomes clear when one delves into a bit of constitutional history, specifically that of Article 145.
That Article, as it now stands, was in fact inserted into the Constitution in 1960 (by Act 10/1960) and came into operation on September 16, 1963. The person who occupied the position of the Attorney General in 1960, and remained there until 1963, was Cecil M Sheridan.
(They apparently waited 3 years to bring this amendment into operation. Readers keenly aware of Malaysian history (or at least those keeping tabs on our public holidays) would recognize that September 16, 1963 was also Malaysia Day: the day when Sabah, Sarawak and (for a brief period) Singapore joined forces with the Persekutuan Tanah Melayu to form Malaysia.)
Previously, Article 145(5) provided that the Attorney General “shall not be removed from office except on the like grounds and in the like manner as a judge of the Federal Court”, and restricted appointment of the Attorney General to judicial and legal service officers.
In “The Office of Attorney-General, Malaysia” [1977] 2 MLJ ms xvi, the first Malayan Attorney General Abdul Kadir bin Yusoff (who served as AG from 1963 to 1977) explained the history behind the original clause. Many had debated whether the Attorney General ought to be a political appointment or a professional one. The Reid Commission eventually came to the view that the Attorney General ought to be a professional appointee rather than a political one, and that was the agreed position with some minor modifications. The Government White Paper explaining the draft Constitution of Malaya said that
“It is essential that, in discharging his duties, the Attorney-General should act in an impartial and quasi-judicial spirit. A clause has therefore been included to safeguard the Attorney-General’s position by providing that he shall not be removed from office except on the like grounds and in the like manner as a Judge of the Supreme Court.”
That provision was the original Article 145(5), since replaced by our current version.
The Explanatory Statement to Act 10/1960 (that amended Article 145) said the reason for the wholesale amendment of Article 145 was to give “greater latitude” to the appointment of the Attorney General. Kadir Yusoff surmises two reasons for this change: the desirability to have “the most suitable person available for the performance of the onerous tasks” of the office of Attorney General, regardless of whether that person was from the public service or not; and the impartiality of a political appointee could be assured by conferring on him “untrammelled constitutional discretion” (the logic of which I cannot quite see) [Id., at ms xix].
Kadir Yusoff, a lawyer and politician in 1960, was immediately appointed Attorney General upon coming into force of the new Article 145, which could not have happened under the previous version.
Be that as it may, given that Attorney Generals could be politicians, their security of tenure akin to those of a Judge was obviously no longer considered necessary. Kadir Yusoff points out rather blandly that this “rigidity” was no longer considered “functionally necessary or desirable” (Id., at ms xxi). However, and I am surmising here, Sheridan’s position as the sitting Attorney General could not be jeapordized, and he should not be considered as being subjected to the new law retroactively. Hence, I surmise, the need for Article 145(6).
The question really arises now because under Malaysian law, the Attorney General has sole discretion to determine whether to prosecute a person for a criminal charge. Other countries have separated the function of the Office of Public Prosecutor and vested that power in an independent body. It is high time for Malaysia to follow suit.
Shanmuga K sometimes sees a purple banana emerging in his sub-conscious. An article seems to then be magically written. He is @shanmuga_k on Twitter. When he does not see those purple bananas, he practices as a lawyer at www.kanesalingam.com
Posted on 28 July 2015. You can follow any responses to this entry through the RSS 2.0.
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