Give the A-G security of tenure, says retired judge

  • Nation
  • Sunday, 20 Sep 2015

PUTRAJAYA: The Attorney-General should have security of tenure, says just retired Court of Appeal Judge Datuk Mohd Hishamudin Yunus.

“There is a need to amend the Federal Constitution to confer security of tenure on the Attorney-General.” 

Mohd Hishamudin who turned 66 on Sept 9 said this when asked who could remove the A-G and whether it could be done without constituting a tribunal to hear charges of misconduct.

“Under Art. 145(5), the A-G holds office ‘during the pleasure of the Yang di-Pertuan Agong’. 

“This means he can, at any time, be removed by His Majesty on the advice of the Cabinet or of a Minister acting under the general authority of the Cabinet (by reason of Art. 40, His Majesty,generally,may only act on the advice of the Cabinet or of a Minister acting under the general authority of the Cabinet). 

“By reason of Art. 132 (4)(b),  the A-G is not regarded as a member of the public service,” he said.

This means he is not protected by Art. 135 which deals with restrictions on dismissal and reduction in rank of public officers, added Mohd Hishamudin.

“The Federal Constitution originally provided that the A-G must be a member of the JLS (Judicial and Legal Services) and he enjoyed a security of tenure in that he could only be removed in the like manner as a Supreme Court Judge (by a tribunal). 

“But this protection was removed when the Constitution was amended in 1963 to provide for the appointment of the A-G from among persons who need not necessarily be from the JLS.

“I am of the view that the A-G, due to the nature of his job, must have a security of tenure.”

The public has been discussing the matter after the Chief Secretary issued a statement out of the blue early July that then Federal Court judge Tan Sri Mohd Apandi Ali was replacing Tan Sri Gani Patail as A-G. 

Gani who also chaired the Special Task Force investigating high profile cases is only due to retire on Oct 6.
Another provision Mohd Hishamudin would like to see amended relates to the amendment to Art. 121(1) in 1988.

He said that amendment, followed 20 years later by the Federal Court case of PP v Kok Wah Kuan (the child convicted of killing his tuition teacher’s daughter) are “disturbing developments as far as the doctrine of separation of powers and the concept of ‘judicial powers’ are concerned.”

He said the Federal Court held the doctrine of separation of powers was not a provision of the Malaysian Constitution, and that judicial power is only to the extent as is conferred by the Legislature. 

“However, with respect, I prefer the dissenting view expressed by Justice Richard Malanjum CJSS (Chief Judge of Sabah and Sarawak) in this case in that the 1988 amendment does not make the Superior Courts servile to, or mere agents of, the Federal Legislature; and that Art 121(1) is not, and cannot be, the whole and sole repository of the judicial role in this country.

“In the same case but at the Court of Appeal stage, Justice Gopal Sri Ram, in delivering the judgment of the Court, states the law correctly when he said that the doctrine of the separation of powers is very much an integral part of the Federal Constitution.

“I hope one day Parliament will amend Art. 121(1) and restore the original provision. Pending that, I hope the Federal Court will have the opportunity one day to revisit Art. 121, Clause (1), and to reconsider its view on the doctrine of the separation of powers and on the meaning of ‘judicial powers’.”

Related story:

Judicial crisis was a nightmare, says retired judge

Judges have a moral and constitutional duty to dissent

'One must consider the spirit of the law'

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