KUCHING, Jan 24 — A fundamental constitutional question on who is the true ‘guardian of public interest’ in Sarawak surfaced during the hearing of judicial review applications before High Court judge Dean Wayne Daly here on Wednesday.
The issue was raised by State Legal Counsel Datuk Seri JC Fong in proceedings involving Petroliam Nasional Bhd (Petronas) subsidiaries challenging the imposition of financial penalties by Sarawak authorities, prompting a broader debate on the respective roles of the federal and state Attorneys-General (AG).
Fong drew the court’s attention to a legal ambiguity under Order 53 Rule 3(3) of the Rules of Court 2012, which requires applicants for judicial review to serve their applications and affidavits on ‘the Attorney General’s Chambers’, without specifying whether this refers to the federal AG or the AG of Sabah or that of Sarawak.
Under Malaysian constitutional arrangements, there are three AGs: the AG of Malaysia, appointed under Article 145 of the Federal Constitution; and the AGs of Sabah and Sarawak, appointed under Article 11 of their respective State Constitutions.
The purpose of the rule, Fong explained, is to enable the AG – traditionally regarded as the guardian of public interest – to appear at the leave stage of judicial review proceedings, as decisions of public authorities invariably affect the public at large.
In the present case, the decisions being challenged involve financial penalties imposed by the Director of Gas Distribution Sarawak under the Distribution of Gas Ordinance (DGO) 2016.
Despite this, counsel for the Petronas subsidiaries, Khoo Guan Huat, together with senior federal counsel (SFC) Ahmad Hanir Hambaly, argued that only the federal AG should be served and allowed to appear, on the basis that the federal AG alone acts as the guardian of public interest.
Fong strongly disagreed, pointing out that the SFC had written to the court even before the hearing to state that the federal AG had no objection to leave being granted to Petronas to apply for certiorari to quash the penalties.
“This position demonstrates that the federal AG could not be acting in the interests of the Sarawak authorities,” Fong submitted.
He further traced the constitutional foundation of the State AG’s office to the Inter-Governmental Committee (IGC) Report of 1962, which recommended the establishment of a State Legal Department and the appointment of a State AG as a state officer.
Under the recommendation, the State AG is appointed by the Governor on the advice of the Chief Minister/Premier, from names submitted by the State Public Service Commission.
This recommendation, Fong noted, was duly entrenched in Article 11 of the Sarawak Constitution.
“The State AG is not under the control of the federal AG,” he said, adding that the purpose of having a State Legal Department is to ensure that Sarawak’s constitutional safeguards are protected and not eroded.
Fong also referred to the Federal Court’s 2019 decision in Peguam Negara Malaysia v Chin Chee Kow, which held that the federal AG is no longer the sole guardian of public interest.
On that basis, he argued there was no reason why the Sarawak AG could not be recognised as the guardian of public interest within the state, particularly when decisions of state public authorities are under challenge.
Fong further cited Section 24(b) of the Government Proceedings Act 1956, which provides that only the State AG or his authorised officers may represent the Sarawak government in civil proceedings where the state is a party.
“If the federal AG has no right to represent the Sarawak government in civil proceedings, how then could he be the guardian of public interest in Sarawak when state decisions are challenged?” said Fong.
Judge Dean observed that the Bahasa Melayu version of Order 53 Rule 3(3) uses the term ‘Jabatan Peguam Negara’ for ‘Attorney General’s Chambers’.
However, senior state counsel Adzrul Afzlan submitted that under Article 161(1) and (2) of the Federal Constitution, English is the language to be used in court proceedings in Sarawak, and therefore the English version of the Rules of Court should prevail and be construed accordingly.
Meanwhile, a senior lawyer in Kuching called on the Sarawak Advocates Association, whose representatives sit on the Rules Committee responsible for drafting court rules, to amend Order 53 Rule 3(3).
The amendment, he said, should clearly require service on the State AG in cases involving challenges to decisions of Sarawak authorities so as to avoid future ambiguity and to affirm the State AG’s role as guardian of public interest in Sarawak. — The Borneo Post
