Law Speak - AG’s termination: constitutional?

30 Jul 2015 / 21:11 H.

    IT CAME as a surprise to everyone. In a curt statement issued by the government's chief secretary, the attorney-general (AG) was removed from office. Summarily and immediately – barely 66 days from his retirement date on Oct 6.
    He was terminated for "health reasons". Strangely his health was no impediment to the requirement that he continue as a "judicial and legal officer".
    Predictably, there is speculation over his termination. After all, AG Tan Sri Abdul Gani Patail was largely perceived to be the government's arch loyal servant. Under his watch, for example, he opposed vigorously any challenge to a minister's exercise of power under judicial review.
    The public seems also intrigued by the speed with which he was terminated; and the timing – simultaneously alongside the deputy prime minister and three other ministers – all vocal critics of the PM vis-à-vis the 1MDB controversy. They had, said the PM, acted "contrary to the concept of collective responsibility".
    Also the removal was in the midst of the investigations into 1MDB – where the AG was one of the four key members of the official task force.
    In fact – and perhaps this provides a clue – the AG has the complete discretion to bring criminal charges against anyone for an offence: Federal Constitution Article 145(3). Some courts have ruled that he has the sole power to do so: Repco Holdings v PP (1997).
    Many have questioned the legality of the sacking. Some say that he can only be removed after a tribunal hearing – and harken to the tribunals set up under the premiership of Tun Dr Mahathir Mohamad for the sacking of the judges. Others opine that he must be given a prior right to be heard. Yet others say that he can be removed because he holds office at "the pleasure of the Yang di-Pertuan Agong".
    Let us examine the legal provisions.
    The AG is a public (or civil) servant. All such officers do not have security of tenure. They hold their office at "the pleasure of the Yang di-Pertuan Agong": Article 145(5). 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).
    In this the King must act on the advice of the Cabinet (or minister acting under the general authority of the Cabinet): Article 40(1).
    Some commentators say that the AG can only be removed from office on the "like grounds and in the like manner as a judge of the Federal Court". Their view is based on Article 145(6) which says that "The person holding the office of the AG immediately prior to the coming into operation of this Article shall continue to hold 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 the like manner as a judge of the Federal Court".
    A straight reading suggests that the protection is only for the then incumbent AG – "holding office prior to the coming into operation of the Article". This article was amended by Act 26/93 on May 26, 1960 – but only came into force on Sept 16, 1963 (Malaysia Day).
    The earlier article read as follows: "The AG … shall not be removed from office except on like grounds and like manner as a judge of the Federal Court".
    So the protection afforded to the AG was removed by this amendment.
    The present article seems to provide for a one-off situation and to one person. Admittedly, this is unusual in a constitution, leading some to argue that the second part of the clause should be read disjunctively (separately) from the first part; with the result that any removal of the AG must be like the removal of a federal judge as provided for in Article 125 – for the same grounds (misconduct, ill-health, etc) and in like manner (tribunal, etc).
    It has also been suggested that the AG's rank has been reduced. He was not given the right to be heard. This is illegal because no public servant can be dismissed or reduced in rank without being first given the right to be heard: Article 135(2). This provision applies, as well, to a member of the judicial and legal service. However the AG is specifically excluded from the benefit of this provision by Article 132(4)(b).
    The government announced it had terminated the AG's services. Termination under a contract differs from a dismissal which involves a penalty or punishment.
    If the termination is in accord with the AG's contract, fine. If not can the termination be wrongful for breach of contract? The Federal Court decided in 1969 that a contractual right could not override the cases which decided that a servant of the crown held office at pleasure: Haji Ariffin v Government of Malaysia.
    The general upshot is that constitutionally the PM 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.
    But aside from the role as a public prosecutor assigned to him by the Constitution, the AG continues to be the guardian of the public interest – a right which is vested in him under the common law. That is why the AG lends his name by way of a relator action to any party seeking to protect the public interest.
    This episode suggests a need to revisit the provisions relating to the AG, in particular to secure his independence and security of tenure.
    Interestingly the rationale provided by the government in 1957 for the original article that the AG be not removed from office except on the like grounds and in the like manner as a judge of the Supreme Court was "to safeguard the AG's position" because "it is essential that, in discharging his duties, the AG should act in an impartial and quasi-judicial spirit".
    Of course this is predicated on the appointment of an AG with integrity in whom the public can repose their confidence of carrying out his constitutional duty. For the people have the right to expect such a high officer to "act honestly, 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": Federal Court in Johnson Tan Han Seng v PP (1977).

    Gurdial is Professor at the Law Faculty, University of Malaya. Comments:

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