The Attorney General - The most powerful person in Malaysia?

Contributed by Tommy Thomas

Friday, 23 May 2008 11:29am

The recommendations of the Royal Commission on the Lingam video has once
again turned the spotlight on the Attorney General, and the awesome powers
wielded by an unelected and unaccountable person. Members of the Bar may be
interested to read the following article that was published in the August
1983 issue of INSAF, when Mahathir was the Prime Minister, Musa Hitam the
Home Minister, Abu Talib the Attorney General and Hanif Omar the Inspector
General. Readers have to form their own opinion on whether the events of the
last 25 years support the argument that much of the Attorney General's
powers must be removed, and whether he should be elected to the Dewan Rakyat
or at least appointed a Senator, and thereby accountable to Parliament (and
the people).
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The Attorney General - The most powerful person in Malaysia?

INSAF, August 1983

If the above question is posed the popular answer would most probably be the
Prime Minister. Other likely candidates would include the Yang di-Pertuan
Agong, the Home Minister, the Inspector-General of Police and the Chief of
General Staff. One would not expect the Attorney General to find a place in
the list of most observers. However it is my contention that a case can be
made for the proposition that the Attorney General wields greater power than
any other person in the land. Some of his powers are examined below.

First, the Attorney General's qualifications. According to Article 145(1) of

the Federal Constitution he must be qualified to be a judge of the Federal
Court. His status as a judge of the appellate court enables him to take
precedence over all the judges of the High Court. He is the principal (sole)
legal advisor to the Yang di-Pertuan Agong, the Cabinet and any Minister. In
this capacity he is responsible for the drafting of most of the bills
presented to Parliament and his opinion is usually sought for the
appointment of Judges. By virtue of Article 145(4) he takes precedence over
any other person appearing before any court or tribunal in the country. The
Attorney-General holds office during the pleasure of the Yang di-Pertuan
Agong.

Perhaps the greatest source of his powers derives Article 145(3) which
provides that he "shall have power, exercisable at his discretion, to
institute, conduct or discontinue any proceedings for any offence" in the
ordinary courts of the land. These general words confer a very wide
discretion to him with regard to the control and direction of all criminal
prosecutions. The Judiciary has rejected any invitation to review the
Attorney General's discretion which has resulted in him having virtually
absolute and limitless discretion in this important area of public life. No
person or body (including the courts) can compel him to institute any
criminal proceedings which he does not wish to institute or to continue the
same which he has decided to discontinue. Constitutionally the Attorney
General does not have to consult any person, including the Prime Minister or
the Minister of Home Affairs, when exercising his powers in relation to
criminal prosecutions. This means that technically the Prime Minister and
his Cabinet may be charged in criminal proceedings at the instance of the
Attorney General.

Emergency legislation like the Internal Securities Act 1960 and the
Essential (Security Cases) (Amendment) Regulations 1975 have added more
powers to the Attorney General's already powerful armoury. Such legislation
has conferred him with the power to charge under the same rather than under
the Criminal Procedure Code by issuing the necessary certificate. If he
chooses to issue such a certificate judicial review is unavailable and the
accused person loses the right to a jury trial and a preliminary inquiry.

By virtue of Section 376 of the Criminal Procedure Code the Attorney General
shall be the Public Prosecutor and may appoint deputy public prosecutors who
shall be under his general control and direction. Section 418A of the Code
enables him to issue a certificate requiring the transfer of a case triable
by a subordinate criminal court to the High Court, which certificate the
subordinate court must comply with. The Courts of Judicature Act 1964 also
confer him with power unavailable to any other person. He may appeal to the
Federal Court against acquittals or sentence and the Federal Court may under
Section 56(A) keep in remand an acquitted person pending disposal of appeal.
Under Section 60(1) the Federal Court shall on his application grant leave
to refer to itself any question of law of public interest which has arisen
in the course of an appeal from a decision of a Subordinate Criminal Court
to the High Court.

The above list setting out the Attorney General's awesome powers with regard
to criminal prosecutions is not exhaustive. That is not all. At the same
time he is the Head of the Legal Service and by virtue of Article 138 of the
Federal Constitution he is a member of the Judicial and Legal Service
Commission whose duty under Article 144(1) is "inter alia" to "appoint",
confirm, emplace on the permanent or pensionable establishment, promote,
transfer and exercise disciplinary control" over members of the Legal
Service.

By virtue of Article 42(5) of the Constitution the Attorney General is a

member of the Pardons Board of each state. He is also entitled under
Articles 42(9) to deliver an opinion is writing to the Pardons Board who
shall consider the same before tendering their advice to the Ruler.

The Attorney General is no longer a political appointment. He is not a

member of the Cabinet. Constitutionally he is not subject to any pressure
from the political forces of the day. He is not a member of Parliament.
Thus, unlike the Prime Minister and his Cabinet, he is not responsible to
Parliament. Notwithstanding that he is not a member of Parliament he may be
appointed under Article 61(2) of the Constitution to a committee of either
House to advice on legal matters.

Perhaps the best way to examine the powers of the Attorney General is by way
of an illustration. If an accused person is apprehended after an offence has
been committed the Attorney General has the following discretionary powers:-
to charge him, if so the type of charge, to issue a certificate to bring the
case under the emergency legislation, to transfer the case to the High
Court, to appear in person at the trial, to appeal to the Federal Court
against acquittal and to apply for the remand of the accused until the
disposal of the appeal, to give a written opinion to the Pardons Board if
the accused is convicted and to sit on the Pardons Board when pardon is
considered. It cannot be believed that it is humanly possible for one person
to combine the different qualities of executive partisanship, judicial
temperament, advocacy skills and compassion and mercy which are called for
in the exercise of these diverse and conflicting powers.

Not contented with this great power and influence the Attorney General now
desires to regulate the legal profession by giving himself the power to
retrospectively modify rules of practice and etiquette which the Bar Council
have over the years formulated to govern the conduct of legal practise in
Malaysia. The powers of the Attorney General make nonsense the doctrine of
separation of powers. Power corrupts and absolute power corrupts absolutely.
The power of the Attorney General has increased since Merdeka, is increasing
and ought to be diminished. Immediate steps ought to be taken by the
relevant authorities to reduce his powers so that the doctrine of separation
of powers is restored to its proper place in the Constitution.
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23-05-2008: Govt may review AG's powers

by Kevin Tan

KUALA LUMPUR: The government is considering reviewing the Attorney-General's

(AG) powers as provided by the Federal Constitution to establish checks and
balances to the prosecution process, Minister in the Prime Minister's
Department Datuk Zaid Ibrahim said.

Winding up the debate on the motion of thanks on the royal address in the
Dewan Rakyat yesterday, Zaid said the government had instructed him on May 2
this year to discuss and study the matter with the AG Chambers.

The study would look at the ability of bodies such as the Anti-Corruption
Agency, AG Chambers and Securities Commission in making prosecution
decisions, he added.

"This will increase the accountability and effectiveness in their

decision-making process. We also hope it will increase the efficiency of
prosecution in these departments or agencies," Zaid said.

He also said the study would find the appropriate mechanism for the AG to
explain the decisions he or she takes in certain cases, especially if they
are cases of public interests.

"It is important to establish a system of checks and balances in the

prosecution process. Even though it is still in the discussion stage, it
must be emphasised that the government is committed to change," Zaid added.

According to him, the government wanted to strike a balance between

executive prerogative and accountability.

The de facto law minister was responding to calls by Datin Seri Dr Wan
Azizah Wan Ismail (Permatang Pauh-PKR) and Mohd Yusmadi Mohd Yusof (Balik
Pulau-PKR) for the AG Chambers not to practise "selective prosecution".

"The government realises there are various allegations about public

prosecutors hunting for "ikan bilis" (minnows)" while allowing "ikan yu"
(sharks) to escape," he said.

Defending the AG Chambers, Zaid said it did not practise "selective

prosecution", stressing that prosecution was based on evidence.

He said the principle of accountability was not ignored even though the AG
had wide discretionary powers.

"The definition of 'discretion' in the context of a government based on

integrity involves distinguishing between what is right and what is wrong,
and it (discretionary power) should be applied with wisdom and fairness.

"Discretion cannot be used as a reason to circumvent accountability and it

must be used in an open and transparent manner to ensure that it is not
abused," Zaid said.

On the proposed Judicial Appointments Commission, he said the government

would table a bill to establish the commission in the next parliament
session. While the prime minister's prerogative to submit names of potential
judges to the Yang di-Pertuan Agong remains, these candidates must also have
the approval of the commission, he added.

"This government is committed to being accountable to the people. As such,

we no longer accept the practice of absolute power that is masked behind the
term 'prerogative,'" Zaid said.

Taking a swipe at the previous administration, he said the prime minister

then could argue that he did not need to explain his actions to the people
because it was his prerogative.

"The culture of making decisions for personal reasons without accountability

and without adhering to the requirements of the Federal Constitutions is
gone.

"Today, the people cannot be forced to accept statements such as 'this is my

discretion' or 'this is my prerogative' without reasonable explanations."

In his speech, Zaid was questioned by several backbenchers, including Datuk

Mukhriz Mahathir (Jerlun-BN).

After "congratulating" Zaid for realising the opposition's manifesto,

Mukhriz pointed out that lobbying for judicial positions also occurred under
Prime Minister Datuk Seri Abdullah Ahmad Badawi's administration.

Meanwhile, Datuk Tajuddin Abdul Rahman (Pasir Salak-BN), who was frustrated
at Zaid for giving the opposition more opportunities to interject instead of
giving way to a backbencher, shouted: "Is this an opposition minister or
government minister?"

Zaid also welcomed the suggestion by Khairy Jamaluddin (Rembau-BN) for the
proposed Malaysian Commission for Anti-Corruption to be given prosecution
power to reduce the workload of the AG Chambers.

He said the government would consider the matter as it was in line with its
plan to discuss and review the AG's powers.
On the call by Lim Guan Eng (Bagan-DAP) for the government to repeal the
Internal Security Act (ISA), Zaid said Home Affairs Minister Datuk Seri Syed
Hamid Albar had announced that the government had no such plans at the
moment.

However, it would consider the possibility of improving the ISA or other

legislation that was considered as "harsh" by certain people by taking into
account the current circumstances, he added.