THE position of the Attorney-General (A-G) has been brought to sharp focus by certain issues over the past few months. In order to understand these issues, it would be useful to understand the role and function of the A-G within our constitutional framework.
Article 145(1) of the Federal Constitution provides that the Yang di-Pertuan Agong must appoint a qualified person as the A-G of the Federation of Malaysia.
Although the appointment is made by the Yang di-Pertuan Agong, the King does not have personal discretion in the matter. His Royal Highness in appointing the A-G, acts upon the advice of the Prime Minister.
The person to be appointed as A-G must be a Malaysian citizen. Within the 20 years preceding his appointment, he or she must either be an advocate and solicitor or a member of the Judicial and Legal Services or a combination of the two.
The A-G has several important functions. The first is as chief legal adviser to the Government of Malaysia, or more specifically, the Yang di-Pertuan Agong or members of Cabinet.
However, this function does not extend to advice relating to personal matters, which do not relate to their official positions.
The A-G is also tasked with any other legal functions from time to time referred or given to him by the Yang di-Pertuan Agong or Cabinet and also any other functions bestowed by the Federal Constitution or any other written laws.
Another important function of the A-G is as a Public Prosecutor.
The A-G has powers, exercisable in his or her discretion, to institute, conduct or discontinue any proceedings for an offence, other than proceedings before a Syariah court, a native court or a court-martial.
This means that the A-G has the power to decide whether to charge a person or discontinue prosecution for any crime within his or her jurisdiction.
Although the Constitution provides that the A-G has the discretion in exercising the role as Public Prosecutor, case laws have developed over the past 20 or so, showing that this discretion is not unfettered.
There are precedents, which now say that the exercise of discretion is reviewable by the Court.
Laws can also be made to provide the A-G powers to determine the court in which proceedings are to begin or which court proceedings may be transferred to.
In exercising the functions under the law, the A-G has the right to be heard in any court or tribunal within the Federation and must take precedence over any other person appearing before the court or tribunal.
The A-G holds office at the pleasure of the Yang di-Pertuan Agong and can resign at anytime. The A-G’s remuneration is determined by the King unless the A-G is also a Cabinet member.
Unlike a judge, in order to remove an A-G, there is no requirement for a tribunal to be instituted for such a purpose. All that is required is for the Prime Minister to advice the Yang di-Pertuan Agong to remove and replace the A-G.
However, if the A-G is also a member of the Judicial and Legal Services, there are certain procedures that need to be adhered to, as there may be a reduction in the rank of the said A-G when the removal occurred.
The A-G plays an important role in the functioning of our country. It is therefore incumbent upon us as Malaysians to understand the position of the A-G within our constitutional framework.
> The views expressed are entirely the writer’s own.