In the upcoming 70th Malaysian Bar AGM on March 19, 2016, there is a motion put forward by members of the Bar essentially asking the Malaysian Bar to pass a resolution, amongst others, of the following:

“THEREFORE, it is hereby resolved that: A. That the Malaysian Bar calls on Mohamed Apandi Ali to immediately resign as attorney-general, for the good of Malaysia, to restore public confidence and perception of the rule of law, in particular the administration of criminal justice in Malaysia;”

It is to be noted that Article 145(1) of the federal constitution states that the Yang di-Pertuan Agong shall on the advice of the prime minister appoint an attorney-general.

We must however, also take note of Article 145(5) of the federal constitution which states that the attorney-general shall hold office during the pleasure of the Yang di-Pertuan Agong and may at any time resign his office.

What this means is if the Yang di-Pertuan Agong is unhappy with the attorney-general for whatever reason, then the Yang di-Pertuan Agong may ask him or her to go.

The other way is if the attorney-general himself or herself decides to resign at any time on his own accord, for whatever reason, health reasons maybe. In this current situation, it is from a upcoming call by the Malaysian Bar.

Therefore, allegations by certain irresponsible parties that “Any discussion could be construed as challenging the royal prerogative of the Yang di-Pertuan Agong” is absolutely misleading simply because the federal constitution provides for the option for the attorney-general to resign at any time.

If you and I were to walk up to the attorney-general and ask him to resign because we do not have any confidence in him, the attorney-general may decide to resign . It is not challenging the Yang di-Pertuan Agong in any way.

So, if the Malaysian Bar do pass a resolution to call for the attorney-general to resign, the attorney-general may do just that based on the option given to him by Article 145(5) of the federal constitution.

This ‘call to resign’ by the Malaysian Bar is actually in essence a call for the public prosecutor to resign. This happens in Malaysia only because of the fact that the attorney-general in Malaysia is the public prosecutor as well, and shall have the control and direction of all criminal prosecutions and proceedings.

This is provided by Section 376 of the Criminal Procedure Code. In most other countries, the public prosecutor and the attorney-general are two distinct and independent institutions.

However, the more important issue at hand is what happens when this ‘call to resign’ is simply ignored.

The criminal justice system in any country is essentially made up of the prosecutors, defending lawyers and the judges. When one component of the system does not function or cease to exist, the entire criminal justice system will simply collapse.

Defending lawyers who are unhappy with the criminal justice system, may just refuse to take part in it. This, to my mind, is a more stronger ‘call to resign’. Defending lawyers, collectively, can dictate that if the attorney-general does not step down, they will not represent anyone in court and make a unified point that if a temporary collapse of the criminal justice system is what is required for change, then so be it.

However, the reality of things do play an important part. How many defending lawyers are actually prepared to lose their livelihood in an effort to bring about change to the current criminal justice system?

PUTHAN PERUMAL is an advocate and solicitor of the High Court of Malaya.