COMMENT | Rather presciently, our Federal Court in 1977 said the attorney-general, when deciding whether or not to charge anyone, must act honestly as the guardian of the public interest “...without fear of powerful national and local figures or of the consequences to him personally or politically, and without favouring his relatives and friends and supporters.”
The AG’s principal concern, said the court, was to maintain the rule of law so as to maintain standards in public life and the private sector.
The newly elected government seems to have decided that the AG, Mohamed Apandi Ali, was remiss in carrying out his functions. The prime minister has ordered that he go on leave.
Effectively, his duties have been taken over by the solicitor-general as is permissible under our Federal Constitution.
This is a prelude to the termination of his job as AG. Can this be done? If so how?
No security of tenure
First, like all public servants, the AGs holds their office at "the pleasure of the Yang di-Pertuan Agong" as stated in Article 145(5). They do not have security of tenure.
Court decisions confirm this: "In Malaysia there is no such thing as permanent service... because every member of the public service (other than judges and the auditor-general) holds office during the pleasure of the State" (Haji Ariffin v government of Malaysia 1969).
So only judges and the auditor-general have security of tenure, and their removal is subject to constitutional procedural safeguards. The AG does not.
This means that the services of the AG can be terminated by the appointing authority – which is the Yang di-Pertuan Agong acting on the advice of the prime minister.
The King must act on the advice of the cabinet (or minister acting under the general authority of the cabinet): Article 40(1). In short, the PM can order the removal of the AG once the cabinet is formed and so orders.
Contractual right does not override
Secondly, the AG’s contract – extended for a further three years by former prime minister Najib Abdul Razak just before the elections – can be terminated. Will this be wrongful for breach of contract?
The Federal Court decided that a contractual right cannot override the cases which decided that a servant of the crown held office at pleasure of the King (Haji Ariffin v government of Malaysia 1969).
Thirdly, Article 135(2) - which requires that a person to be dismissed must be given a reasonable opportunity to be heard – does not apply because (a) the AG is explicitly excluded from the benefit of this article by Article 132(4)(b), and (b) termination under a contract differs from a dismissal, which involves a penalty or punishment.
Serving at the King's pleasure
What of the common law right to be heard in administrative law? This can be excluded (Kulasingam v Commissioner of. Lands, Federal Territory 1982). This exclusion arises from the provision that the AG holds his office at the pleasure of the King.
What of the right of natural justice as an integral constitutional requirement of the constitution as recognised by our jurisprudence (Ong Ah Chuan v public prosecutor). Then it forms part of the constitution’s basic structure and cannot be denied.
Ironically, counsel from the AG’s Chambers under Apandi have successfully argued against the recognition of this right in our highest court.
The upshot is that constitutionally the prime minister has the final say for the removal of the AG. After all he is the government's legal adviser, and the ‘client’ has the right to ‘change’ his lawyer at any time.
GURDIAL SINGH NIJAR is a former law professor at Universiti Malaya.
The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.