The Attorney General - The most powerful person in Malaysia?

The recommendations of the Royal Commission on the Lingam video has once again turned the spotlight on the Attorney General, and the awesome powers wielded by an unelected and unaccountable person. Members of the Bar may be interested to read the following article that was published in the August 1983 issue of INSAF, when Mahathir was the Prime Minister, Musa Hitam the Home Minister, Abu Talib the Attorney General and Hanif Omar the Inspector General. Readers have to form their own opinion on whether the events of the last 25 years support the argument that much of the Attorney General’s powers must be removed, and whether he should be elected to the Dewan Rakyat or at least appointed a Senator, and thereby accountable to Parliament (and the people).

The Attorney General - The most powerful person in Malaysia?
INSAF, August 1983
If the above question is posed the popular answer would most probably be the Prime Minister. Other likely candidates would include the Yang di-Pertuan Agong, the Home Minister, the Inspector-General of Police and the Chief of General Staff. One would not expect the Attorney General to find a place in the list of most observers. However it is my contention that a case can be made for the proposition that the Attorney General wields greater power than any other person in the land. Some of his powers are examined below.

First, the Attorney General’s qualifications. According to Article 145(1) of the Federal Constitution he must be qualified to be a judge of the Federal Court. His status as a judge of the appellate court enables him to take precedence over all the judges of the High Court. He is the principal (sole) legal advisor to the Yang di-Pertuan Agong, the Cabinet and any Minister. In this capacity he is responsible for the drafting of most of the bills presented to Parliament and his opinion is usually sought for the appointment of Judges. By virtue of Article 145(4) he takes precedence over any other person appearing before any court or tribunal in the country. The Attorney-General holds office during the pleasure of the Yang di-Pertuan Agong.

Perhaps the greatest source of his powers derives Article 145(3) which provides that he “shall have power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for any offence” in the ordinary courts of the land. These general words confer a very wide discretion to him with regard to the control and direction of all criminal prosecutions. The Judiciary has rejected any invitation to review the Attorney General’s discretion which has resulted in him having virtually absolute and limitless discretion in this important area of public life. No person or body (including the courts) can compel him to institute any criminal proceedings which he does not wish to institute or to continue the same which he has decided to discontinue. Constitutionally the Attorney General does not have to consult any person, including the Prime Minister or the Minister of Home Affairs, when exercising his powers in relation to criminal prosecutions. This means that technically the Prime Minister and his Cabinet may be charged in criminal proceedings at the instance of the Attorney General.

Emergency legislation like the Internal Securities Act 1960 and the Essential (Security Cases) (Amendment) Regulations 1975 have added more powers to the Attorney General’s already powerful armoury. Such legislation has conferred him with the power to charge under the same rather than under the Criminal Procedure Code by issuing the necessary certificate. If he chooses to issue such a certificate judicial review is unavailable and the accused person loses the right to a jury trial and a preliminary inquiry.

By virtue of Section 376 of the Criminal Procedure Code the Attorney General shall be the Public Prosecutor and may appoint deputy public prosecutors who shall be under his general control and direction. Section 418A of the Code enables him to issue a certificate requiring the transfer of a case triable by a subordinate criminal court to the High Court, which certificate the subordinate court must comply with. The Courts of Judicature Act 1964 also confer him with power unavailable to any other person. He may appeal to the Federal Court against acquittals or sentence and the Federal Court may under Section 56(A) keep in remand an acquitted person pending disposal of appeal. Under Section 60(1) the Federal Court shall on his application grant leave to refer to itself any question of law of public interest which has arisen in the course of an appeal from a decision of a Subordinate Criminal Court to the High Court.

The above list setting out the Attorney General’s awesome powers with regard to criminal prosecutions is not exhaustive. That is not all. At the same time he is the Head of the Legal Service and by virtue of Article 138 of the Federal Constitution he is a member of the Judicial and Legal Service Commission whose duty under Article 144(1) is “inter alia” to “appoint”, confirm, emplace on the permanent or pensionable establishment, promote, transfer and exercise disciplinary control” over members of the Legal Service.

By virtue of Article 42(5) of the Constitution the Attorney General is a member of the Pardons Board of each state. He is also entitled under Articles 42(9) to deliver an opinion is writing to the Pardons Board who shall consider the same before tendering their advice to the Ruler.

The Attorney General is no longer a political appointment. He is not a member of the Cabinet. Constitutionally he is not subject to any pressure from the political forces of the day. He is not a member of Parliament. Thus, unlike the Prime Minister and his Cabinet, he is not responsible to Parliament. Notwithstanding that he is not a member of Parliament he may be appointed under Article 61(2) of the Constitution to a committee of either House to advice on legal matters.

Perhaps the best way to examine the powers of the Attorney General is by way of an illustration. If an accused person is apprehended after an offence has been committed the Attorney General has the following discretionary powers:- to charge him, if so the type of charge, to issue a certificate to bring the case under the emergency legislation, to transfer the case to the High Court, to appear in person at the trial, to appeal to the Federal Court against acquittal and to apply for the remand of the accused until the disposal of the appeal, to give a written opinion to the Pardons Board if the accused is convicted and to sit on the Pardons Board when pardon is considered. It cannot be believed that it is humanly possible for one person to combine the different qualities of executive partisanship, judicial temperament, advocacy skills and compassion and mercy which are called for in the exercise of these diverse and conflicting powers.

Not contented with this great power and influence the Attorney General now desires to regulate the legal profession by giving himself the power to retrospectively modify rules of practice and etiquette which the Bar Council have over the years formulated to govern the conduct of legal practise in Malaysia. The powers of the Attorney General make nonsense the doctrine of separation of powers. Power corrupts and absolute power corrupts absolutely. The power of the Attorney General has increased since Merdeka, is increasing and ought to be diminished. Immediate steps ought to be taken by the relevant authorities to reduce his powers so that the doctrine of separation of powers is restored to its proper place in the Constitution.

Tommy Thomas
Malaysian Bar