The removal of an attorney-general — Gregory Das

MAY 13 — Much has been said on the proposed removal of the Attorney General since the installation of the new Prime Minister. In his press conference on the 12th of May, Prime Minister Tun Dr Mahathir Mohamad was reported to have said that the country does not have an Attorney General at present¹. The Attorney General Tan Sri Mohamad Apandi Ali declined to comment on the Prime Minister’s statement².

There have also been calls from within Pakatan Harapan for Tan Sri Mohamad Apandi Ali to resign³. Such statements are of wide consequence. A central part of the constitutional functions of an Attorney General requires him to “advise the Yang di-Pertuan Agong or the Cabinet or any Minister upon such legal matters, and to perform such other duties of a legal character, as may from time to time be referred or assigned to him by the Yang di-Pertuan Agong or the Cabinet…” (see Article 145(2) of the Federal Constitution). Statements of no confidence from the ruling coalition that will form the Cabinet (the very persons the Attorney General would advise) calls into question the suitability of Tan Sri Mohamad Apandi Ali’s remaining in office. 

To date, Tan Sri Mohamad Apandi Ali has not resigned. Therefore, in view of the new administration’s proposals on the Attorney General position, a question arises on the manner in which an Attorney General can be removed from office.

The manner of the removal of an Attorney General depends on the manner of the appointment and the occupational background of the Attorney General (namely; whether it was an appointment by contract, an appointment from the Cabinet or Parliament or an appointment from the judicial and legal services).

This is in view of the applicable provisions under the Federal Constitution.

Articles 145(5) and 145(6) of the Federal Constitution provide as follows on the appointment and removal of an Attorney General:

“145. Attorney General

…

(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.

(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.”

Also relevant is Article 135, which refers to the dismissal of a public servant:

“135. Restriction on dismissal and reduction in rank

(1)          No member of any of the services mentioned in paragraphs (b) to (h) of Clause (1) of Article 132 shall be dismissed or reduced in rank…

(2)          No member of such a service as aforesaid shall be dismissed or reduced in rank without being given a reasonable opportunity of being heard:

Provided that this clause shall not apply to the following cases: (not applicable)”

Then there is Article 132(4)(b) (in the same Part of the Federal Constitution as Article 135), which appears to exclude the guarantee of a right to be heard prior to dismissal or reduction in rank under Article 135(2) for an Attorney General:

“(4) References in this Part, except in Articles 136 and 147, to persons in the public service or to members of any of the public services shall not apply to—

…

(b) the Attorney General or, if provisions for the manner of his appointment and removal from office is specifically included in the Constitution of the State, or if he is appointed otherwise than from among the members of the judicial and legal service or of the public service of the State, the legal adviser of any State;”(emphasis added)

Since independence in 1957 there have been three classes of persons appointed as the Attorney General.  First, there have been Attorneys General who were members of the Cabinet or Members of Parliament⁴, secondly, there have been those who were appointed under contract⁵, and, thirdly, there have been appointees from the judicial and legal services⁶.

First, Attorneys General who have been appointed from the Cabinet or who are Members of Parliament hold the office “during the pleasure of the Yang di-Pertuan Agong and may at any time resign his office…” (see Article 145(5)). It is doubtful if Article 145(6) requires the forming of a tribunal (of the kind contemplated for the removal of a Federal Court Judge) to remove an Attorney General with such a ministerial and/or parliamentary background. The doubt arises because it would then seem that latter Attorneys General enjoy less protection of tenure than the transitional Attorney General (namely, the Attorney General referred to in Article 145(6) as the “The person holding the office of Attorney General immediately prior to the coming into operation of this Article…”).

Secondly, in respect of Attorneys General appointed from the judicial and legal services, Article 145(5) read with Article 132(4)(b) would apply directly.

From a plain interpretation of Article 132(4)(b), the exclusion (of the right to be heard prior to dismissal or reduction in rank) within its terms would not apply to Attorneys General who have been appointed from the judicial and legal service. This is in view of the phrase “appointed otherwise than from among the members of the judicial and legal service” in Article 132(4)(b).

In other words, the exclusion of procedural fairness (or the right to be heard) in Article 132(4)(b) would appear to be applicable only to Attorneys General who were appointed from their position as a member of the Cabinet, or as a Member of Parliament or, alternatively, as an external appointment (ie by contract).

Therefore, the requirements of procedural fairness would apply to the termination of services of an Attorney General appointed from the judicial and legal services.

Thirdly, Attorneys General who are appointed by a contract of service have tenure that operate on a fixed-term basis. A termination of service for such Attorneys General may be effected in accordance with the termination clauses in the contracts.

Attorney General Tan Sri Mohamad Apandi Ali was appointed to his position by contract. It was reported that his contract is set to expire on 27th July, 2018. It was also reported that the previous government had agreed to renew Tan Sri Mohamad Apandi Ali’s contract for three years until 27th July, 2021⁷.

Despite the apparent exclusion of the right to be heard for Attorneys General appointed by contract under Article 132(4)(b) (as discussed above), it is argued that the safeguards of procedural fairness prior to dismissal would still apply to an appointee by contract.

The concept of procedural fairness and natural justice is not exclusively contained within Article 135(2). The concept originates from Articles 5(1) (Right to life) read with 8(1) (Equality before the law) of the Federal Constitution. Articles 5(1) and 8(1) have been given a wide interpretation to require that all forms of state action must be effected with fairness and justice (most prominently procedural fairness)⁸.

Therefore, Articles 132(4)(b) and/or 145(5) would be subject to the overriding application of Articles 5(1) and 8(1) and the rule of procedural fairness.

It follows that the right to be heard should be embedded within the steps that may be taken to remove Tan Sri Mohamad Apandi Ali from office. This would accord with the present administration’s encouraging intention to place adherence to the rule of law at the forefront of its actions.

1. See https://www.malaymail.com/s/1630115/job-vacancy-ag-of-malaysia.

2. See https://www.malaymail.com/s/1630170/apandi-declines-comment-on-dr-ms-we-have-no-ag-remark.

3. See https://www.thestar.com.my/news/nation/2018/05/13/gobind-calls-for-apandis-resignation/./

4. Such as Tan Sri Datuk Haji Hamzah b Datuk Abu Samah.

5. Such as Tan Sri Dato’ Seri Ainum bt Mohamed Saaid and the present Attorney General, Tan Sri Dato’ Sri Haji Mohamed Apandi bin Haji Ali.

6. Such as Thomas Vernor Alexander Brodie, Tan Sri Dato’ Cecil M Sheridan, Tan Sri Datuk Haji Abdul Kadir b Yusof, Tan Sri Datuk Abu Talib b Othman, Tan Sri Dato’ Seri Mohtar b Abdullah, and Tan Sri Abdul Gani Patail.

7. See https://www.malaymail.com/s/1617494/a-g-gets-three-year-term-extension.

8. See the Federal Court in Lee Kwan Woh v Public Prosecutor [2009] 5 MLJ 301, the Court of Appeal in Hong Leong Equipment Sdn. Bhd. v Liew Fook Chuan & Anor [1996] 1 MLJ 481 and the Court of Appeal in Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan [1996] 1 MLJ 261.

* Gregory Das is an advocate and solicitor of the High Court of Malaya.

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