Removal of the AG from office under the Federal Constitution — Lim Wei Jiet

MAY 11 — On 9^th May 2018, Malaysians voted resoundingly to remove Barisan Nasional from federal power for the first time in 6 decades. Tun Dr Mahathir Mohamad, who led the victorious Pakatan Harapan coalition, was sworn in as the 7^th Prime Minister of Malaysia on 10^th May 2018.

Since then, the Pakatan Harapan government wasted no time in declaring Apandi Ali’s unfitness to continue occupying the office of the Attorney General. Mahathir said: “We have to look into who is the attorney-general. At the moment, the attorney-general has undermined his own credibility…He has, in fact, hidden evidence of wrongdoing and that is wrong in law.”

In response to that, Apandi Ali said: “My conscience is clear. Anyway, I will cross the bridge when I come to it.”

One only hopes he crosses the bridge sooner rather than later. With such resounding lack of confidence on the part of the Pakatan Harapan government, Apandi Ali should do the honourable thing and resign from office. Clinging on to the role of Attorney General would only result in an ugly confrontation and further soil the honourable institution.

Apandi Ali has already brought great disgrace and shame to the office of the Attorney General. The circumstances of his appointment, staunch defence of Najib in the 1MDB scandal against overwhelming evidence and selective prosecution of opposition and civil society figures have crumbled the rule of law in Malaysia.

But what if Apandi Ali refuses to resign?

The relevant provisions of the Constitution are open to interpretation, and hence two scenarios may arise.

Scenario 1

Article 145(6) of the Constitution states: “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.”

In this regard, Article 125(3) of the Constitution states that if the PM represents to the YDPA that a judge of the Federal Court ought to be removed due to breach of the code of ethics or inability to properly discharge the functions of his office, the YDPA shall appoint a tribunal and refer the representation to it; and may on the recommendation of the tribunal remove the judge from office.

Such tribunal shall consist of at least5 persons who hold or have held office as judge of the Federal Court, the Court of Appeal or a High Court, or persons who have held equivalent office in the Commonwealth if it appears expedient for the YDPA to do so: see Article 125(4).

In short, a tribunal of experienced judges would be convened to assess and provide recommendations as to whether Apandi Ali ought to be removed from office.

Scenario 2

Nonetheless, some parties – including Professor Dato’ Gurdial Singh Nijar and notably Apandi Ali himself in justifying the removal of Gani Patail –  have argued that Article 145(6) only applies to persons holding the office prior to operation of Article 145 i.e. to the Attorney General from 1959 to 1963. The requirement of a tribunal hence does not apply to Attorneys General after such period.

If this is true, Article 145(5) of the Constitution is relevant and reads: “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”.

In exercising his functions under the Constitution, the YDPA is a constitutional monarch – he does not have discretion and must act in accordance with the advice of the Cabinet or a Minister authorised by the Cabinet (except for limited matters prescribed under Article 40(2)): see Article 40(1) & (1B).

By extension, if the Prime Minister as the leader of Cabinet advises the YDPA to remove an official holding an office held at the pleasure of the latter, the YDPA must comply with such advice.

In Dato’ Seri Anwar bin Ibrahim v Perdana Menteri Malaysia & Anor[2010] 3 MLJ 174, Federal Court had the opportunity to discuss a similar provision and relied on VN Shukla’s Constitution of India (7^th Ed, India) at p247 which states as such: “Clause 2 lays down that the Ministers hold office during the pleasure of the President. The fact that each member holds office at the pleasure of the President indicates that his office is at all times at the Prime Minister’s disposal, for in these matters the President, like the King in England, acts on the advice of the Prime Minister”.

Therefore, the Prime Minister of the Pakatan Harapan government can advise the YDPA to remove Apandi Ali from the office of the Attorney General, and the YDPA has no option but to act on such advice.

Ideally, natural justice ought to be complied. If Scenario 2 applies, before the Prime Minister advises the YDPA, it should give Apandi Ali the opportunity to defend the actions taken during his tenure in office.

*Lim Wei Jiet is an Advocate & Solicitor of the High Court of Malaya & Deputy Chair of the Bar Council’s Constitutional Law Committee.

**This is the personal opinion of the writer and does not necessarily represent the views of Malay Mail.