COMMENT If not for the cabinet reshuffle announced on Tuesday, the sacking of Abdul Gani Patail as the attorney-general earlier that day would have hogged the headlines and may even have sparked the biggest constitutional crisis in the country since 1988.

And it still can take such a form - if Gani decides to challenge his removal in a court of law.

In a move that shocked many, especially those in the legal fraternity, the government announced that Gani had been replaced with former Federal Court judge Mohamed Apandi Ali.

Shocking because Gani was supposed to retire on Oct 6, when he turns 60, the mandatory age of retirement for civil servants.

The intrigue does not stop there.

Chief Secretary to the Government Ali Hamsa released a statement saying Gani's services were terminated early due to “health problems” , a reason that appeared to surprise even Gani.

Adding to all this confusion, Ali ( photo ) also said Gani would continue serving the country as a judicial and legal service officer until Oct 6. 

But to serve in what capacity, and where? In the Attorney-General’s Chambers? Or would he be appointed a Federal Court judge so that he would retire as one?

Not just us. I am sure Gani would be wondering along the same lines.

However, the question I find difficult to answer is whether Gani can be removed in such a manner. Did the government follow the proper procedures?

I read what the experts had to say about this and it appears there are varying opinions, based on different interpretations of Article 145 (5) and (6) of the Federal Constitution, the supreme law of our land.

Misbehaviour, inability to discharge duties

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 is stipulated in Article 125 (3), and as with the AG, can be done via a tribunal.

As I pondered, I was reminded of a book called The Malaysian Judiciary , written by former Federal Court judge James Foong, which I read many years ago.

Foong wrote the book in 1994 when he was a High Court judge.

In the book, he says that with the exception of misbehaviour or inability to discharge official duties, a judge cannot be removed from office until his or her tenure expires.

Any attempt to remove a judge from office during his or her term requires a tribunal consisting of no less than five judges or former judges, to be appointed by the Yang di-Pertuan Agong.

In 1988, a tribunal was appointed to inquire into an allegation of misbehaviour by the then Lord President Mohd Salleh Abas ( photo ), and which eventually led to his removal.

Now we go to the crucial point in the book. On page 91, Foong says:

“Again in 1992, a tribunal was appointed to inquire into the inability of the then Chief Justice of Malaya, Hashim Yeop Abdullah Sani, to carry out his official duties due to ill health.

“The tribunal recommended to His Majesty the early retirement of the then Chief Justice from office. This recommendation was accepted and Hashim Yeop Abdullah Sani was duly discharged from office.”

A tough decision for Gani

Surely we can now see the point. It suggests that even if it is for health reasons, a tribunal ought to be appointed to remove a judge – and similarly, the attorney-general.

The same applies to Gani by virtue of Article 145 (6) and Article 125 (3).

A highly respected judge, Foong retired in 2012.

As you may remember, Foong ( photo ) was chairperson of the Royal Commission of Inquiry into the death of Teoh Beng Hock, the political assistant to a Selangor state executive councillor, who was found dead while in the custody of the Malaysian Anti-Corruption Agency.

He was also the judge in The Highland Towers case, which involved the determination of quantum and liability of various bodies, including construction professionals, for the 1993 collapse of the residential tower block that claimed many lives.

Based on the information given by Foong in his book, and after analysing the arguments made by the experts thus far, I can conclude that Gani can only be removed by a tribunal.

My take on this issue can be wrong. If so, what are the reasons?

We know that the judiciary has the power to hear and determine civil and criminal matters, as well as pronounce on the legality of legislative or executive acts.

We also know that it can interpret the federal and state constitutions. In simple terms, as Parliament makes law, the judges interpret them.

As the former long-serving attorney-general, Gani, I have no doubt, knows his constitutional rights, with the case authorities at his fingertips.

For Gani, taking the government to court would be a tough decision, for there will be consequences - especially if he fails.

However, to know whether his removal was constitutional or not, only judges can decide. It must be tested in the court of law.

So, what is it going to be? 

My learned friend, the ball is now in your court.

G JEGATHESAN is a member of the Malaysiakini Team.

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