If former Attorney General Abdul Gani Patail is not satisfied with the manner of his removal, he can challenge the matter in court, said a constitutional lawyer who wants to remain anonymous.

 

The government had announced this morning that Gani had been replaced by former Federal Court judge Mohamed Apandi Ali.

 

The well-known lawyer, who declined to be named, said there was ambiguity in Article 145 (5) and (6) and this could be brought to court for interpretation in particular, the Federal Court.

 

“Gani cannot say that he cannot trust the court system as he was previously the AG. He can bring the constitutional challenge to court and seek its interpretation,” said the lawyer.

Article 145 concerns the special provision on the attorney general.

Clause (5) states subject to Clause (6), the AG shall hold office during the pleasure of the Yang di-Pertuan Agong and may at any time resign his office and, unless he is a member of the Cabinet, shall receive such remuneration as the Yang di-Pertuan Agong may determine.

Clause (6) states the person holding the office of AG immediately prior to the coming into operation of this Article, shall continue to hold the office on terms and conditions not less favourable than those applicable to him immediately before such coming into operation and shall not be removed from office except on the like grounds and in the like manner as a judge of the Federal Court.

 

The removal of a judge of the Federal Court as stipulated in Article 125 (3), as with the AG, can be done via a tribunal, as was done on former lord president, Mohd Salleh Abbas in 1988.

 

Paying price for abuse of power

 

Meanwhile, former minister in the Prime Minister's Department Zaid Ibrahim ( photo ) told Malaysiakini that the people are paying the price for abuse of power.

 

“This is a sad day for Malaysia. There have been many sad days before and there could be more ahead.”

He added that in the removal of Gani and other leaders of the country, people tolerate the abuse of power never thinking it would touch them.

“The leaders have done many things and we tolerate it. Even violations of the Federal Constitution, we have gone on to condone it.”

 

Zaid said as long as the people do not stand up to such abuses, it will continue to go on.

Param : PM has prerogative

Former UN special rapporteur on the independence of judges, Param Cumaraswamy, however told Malaysiakini that the PM has the prerogative to remove Gani by virtue of Article 145 (5).

This, he said, had happened before when former premier Dr Mahathir Mohamad removed former attorney-general Ainum Mohd Said in 2001 when she did not see eye-to-eye with him on policy matters.

“Mahathir wanted Ainum to follow his orders but she did not want to and there she goes and Gani came in,” he said.

The attorney-general, he said, holds the post at the pleasure of the Yang di Pertuan Agong who acts under the advice of the PM to make the appointment.

He also said Article 145 (6) only refers to removal by tribunal if there is a misconduct charge.

Asked whether a judicial review can be mounted by Gani to challenge the decision, Param ( photo ) said he was unsure as the laws of judicial review have changed.

Gani's removal as the top legal person in the government grabbed headlines this morning as he is represented in the high-powered multi-agency task force set up  to look into allegations of money from state agency 1MDB being deposited into Najib's personal accounts.

Gani himself was tightlipped  over whether his removal is a result of his position in the task force.

LFL expresses concern

Lawyers for Liberty's executive director, Eric Paulsen, expressed concern at the sudden removal of Gani and the wide-ranging cabinet reshuffle.

“While it may be the PM’s prerogative to appoint and remove members of his cabinet, the position of the attorney-genera is governed by the Federal Constitution.

“Under article 145(6) of the Constitution, the AG’s security of tenure is protected and he “shall not be removed from office except on the like grounds and in the like manner as a judge of the Federal Court'.”

Under article 125(3) of the Constitution, a federal court judge (and therefore the AG) can only be removed through a tribunal that is appointed by the Yang di-Pertuan Agong for a breach of code of ethics, inability, infirmity of body or mind or any other cause that prevents him from properly discharge the functions of his office.”

Paulsen ( photo ) said Gani's sudden removal at the PM's whim was shocking and can only fuel public suspicion of interference and that this was done in bad faith as he had then headed the high -evel task force investigating the massive 1MDB scandal engulfing the PM’s administration.

“We call on the PM not to act recklessly and in contravention of the Constitution.

“If Gani is unable to properly discharge the functions of his office, the right thing to do is to set up a tribunal in accordance with the Constitution, so that he can properly defend himself against any charges and if warranted, he can so be removed,” said Paulsen.

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