NOVEMBER 11 — The duties of the Attorney General (AG) are enshrined in the Federal Constitution, particularly under Article 145 of the Federal Constitution.
Article 145(2) provides that the AG is the government’s principal legal advisor while Article 145(3) provides for his duties as the Public Prosecutor (PP).
As the government’s principal legal advisor, it is the AG’s duty to advise the Yang di-Pertuan Agong, prime minister, the Cabinet and a 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.
In the case of Lim Kit Siang v. United Engineers (M) (No 2) [1988] 1 MLJ 50, High Court judge VC George had the occasion to explain the difference between the AG in England and in Malaysia. The learned judge said:
“In England… the office of the Attorney-General is a political one and the incumbent of that office is always a Member of Parliament and frequently is a member of the Cabinet or attends Cabinet meetings.
“He is answerable to Parliament. Members of both Houses are entitled to and do demand explanations of the Attorney-General.
“If, for instance, the Attorney-General refuses to give his consent to the use of his name in a relator action he could be asked in Parliament to explain why he did not.
“In Malaysia, the Attorney-General’s position is very different from that of his British counterpart.
“He is a civil servant appointed by His Majesty the Yang Di Pertuan Agong on the advice of the Prime Minister.
“He is not answerable to anybody, not to any Minister or Ministry, not even to the Prime Minister, not to Parliament and not to the people (in that his is not a political appointment).
“However, he holds office during the pleasure of the Yang Di Pertuan Agong which in effect means during the pleasure of the Executive.”
However one looks at the AG in Malaysia, he is first and foremost the principal legal advisor to the monarch, the Cabinet or any minister.
In discharging his constitutional duties, the AG plays a crucial role in the administration of the country, to ensure legal order.
In deliberating any important decisions or policies particularly involving national and public interest, the advice of AG is sought on whether such action or decision runs in accordance with rule of law.
The AG must discharge his duties with candour. The word means the quality of being honest and telling the truth, especially about a difficult or embarrassing subject.
The AG must ensure that every piece of advice given is consistent with the provisions of the Federal Constitution, being the supreme law of the land and legal principles.
He is to ensure that all organs of the Government respect and abide by the provisions of the Federal Constitution.
The AG must do all of the above without fear or favour. The phrase means to act in an impartial, fair, and just manner, free from any external influence, pressure, or bias.
Geoffrey Cox, who was the UK AG from July 2018 to February 2020 once said that the AG must ensure that he gives honest, candid and independent advice to the Government and that it is not acceptable that the AG “massage or improve his advice for the purposes of party politics”.
The AG’s advice on the law and the rule of law may not be well received or inconsistent with a Prime Minister’s or a Cabinet or a Minister’s take on a matter.
Ministers must be mindful that the AG’s advice is supported by the work of his law officers in the AG’s Chambers (AGC) – thoroughly researched and soundly reasoned.
While ministers are not bound to follow the legal advice, they should direct their minds to the implications of their decisions.
Remember Pulau Batu Puteh?
According to reports, then Prime Minister Dr Mahathir Mohamad was of the view that the applications before the International Court of Justice (ICJ) were “too weak to convince the ICJ”, basing his view on observations of the documents that were received by the AGC in 2018, and on his discussions with legal consultant Brendan Plant.
Dr Mahathir said he had met with Plant prior to a briefing on May 17, 2018, but Plant denied it.
The Royal Commission of Inquiry (RCI) found that Plant said Malaysia had a plausible case and a credible basis for both the revision and interpretation application despite it being difficult to make.
“It is clear that Brendan Plant never stated that Malaysia had a very weak case in both applications. He also never stated that withdrawing both applications would have been a better option,” the RCI remarked.
The local consultants — Firoz Hussein Ahmad Jamaluddin and Abu Bakar As-Sidek Haji Mohd Sidek — said Malaysia had an arguable case.
Other international consultants — Professor Malcolm Shaw QC, Sir Daniel Lincoln Bethlehem QC and Plant — also did not say Malaysia had a very weak case.
In its 217-page report, the RCI recommended that a criminal investigation be initiated against Dr Mahathir.
So, how will the Cabinet decide on the Kota Kinabalu High Court’s ruling that affirmed Sabah’s right to 40 per cent of federal revenue collected from the state?
After receiving advice from the AG, will the Cabinet follow or unfollow the advice?
* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.
