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Power of Attorney General (Malaysia) Should be Diminished

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Running Head: THE ATTORNEY GENERAL’S POWER SHOULD BE DIMINISHED 1

45.5 (22.75)

The Attorney General’s Power Should be Diminished

Muhammad Amirul Fahmi bin Nazri

1818015

Ahmad Ibrahim Kulliyyah of Laws

Muhammad Zakiy Najdee bin Shahirul

1817459

Ahmad Ibrahim Kulliyyah of Laws

Madam Noor Haimiakhtar binti Abu Bakar

Section 27

International Islamic University Malaysia

17​th​ September 2020

THE ATTORNEY GENERAL’S POWER SHOULD BE DIMINISHED 2

The Attorney General’s power should be diminished

The Government of Malaysia has three organs which are known as legislative,

executive and judiciary. Without these organs, running a government will be a pain in the neck.

In a country with a parliamentary democracy, these organs must exist and operate, together

with governing different scopes and roles. As Malaysia adheres to Baron de Montesquieu

political philosophy, a doctrine of separation of power is vital to ensure the government runs

progressively and far from any chances for anybody to abuse the power. This is a part of the

vast topic of constitutionalism.

Overlapping roles and powers cause the failure of the idea of constitutionalism. In other

meaning, a man cannot have two or more positions at the same time. Malaysia, being a country

of a unique blend of British-fashioned constitutional monarchy with a tint of Malaydom, an

Eastern-centric worldview and comprehensive Islamic laws also practice constitutionalism; no

one shall be put above the law or being too powerful in Malaysia.

However, does Malaysia profess constitutionalism? Is Malaysia considered as a country

of pure constitutionalism? In reality, no country follows constitutionalism perfectly, including

Malaysia. The role and power of the Attorney General is the proof of how the doctrine of

separation is being shattered into pieces. Basically, “Attorney General is Chief Legal Adviser

to the Government” (Aira & Jiet, 2016, p.3).

According to Article 145 of Federal Constitution, Clause (1) says “The Yang di-Pertuan

Agong shall, on the advice of the Prime Minister, appoint a person who is qualified to be a

judge of the Federal Court to the Attorney General for the Federation.” Further explanation of

how the advice shall be conducted by Attorney General already included in Article 145 (2) of
THE ATTORNEY GENERAL’S POWER SHOULD BE DIMINISHED 3

Federal Constitution where the duty is to advise only in legal matters that have been provided

under this Constitution towards Yang di-Pertuan Agong and also to the Cabinet and any

Minister continuously.

The problem started when other Clauses followed by the extra scopes and power to the

Attorney General where Clause (3) says Attorney General has undisputed power to continue or

stop any proceedings except cases under Syariah, native and court-martial and Clause (3A)

Attorney General has the power to choose which court with precise location to proceed with

the trial. The Attorney General also can exercise as a Public Prosecutor in Section 418A (2) of

Criminal Procedure Code.

With all of these immoderate powers, the idea of constitutionalism is being left away,

and corruption may be inevitable. Without separation of power, it gives any possibility of

further destruction in the government as it was discussed by 19th century British politician

Lord Acton “Power tends to corrupt, and absolute power corrupts absolutely. Great men are

almost always bad men." (Martin, 2020).

Therefore, the Attorney General’s power should be diminished because he can violate

the doctrine of separation of power, he can represent as a prosecutor, and he can stop or

continue charges in a court of law.

Violate the doctrine of separation of power

As the doctrine of separation of power is part and parcel of the Malaysian legal system,

a person should not have the power beyond a single organ of the government. An Attorney

General of Malaysia is an executive officer whose power violates the boundaries between at

least two organs; judiciary and executive. Besides all of the excessive executive power to be
THE ATTORNEY GENERAL’S POWER SHOULD BE DIMINISHED 4

given in a country of democracy, an Attorney General also has the jurisdiction to determine

and to transfer proceedings from a lower court to a higher court and vice versa, which is clearly

a judicial power. Moreover, as impliedly stated in Article 138 (2) (a), an Attorney General

could also be a member of the parliament, granting him a piece of a legislator’s power.

Unsurprisingly, an Attorney General may also be a member of the cabinet. The late Tan

Sri Hamzah Abu Samah, a politician during the era of Tun Razak and Tun Hussein Onn, may

be regarded as the most powerful individual of all time next to the Prime Minister, and sadly,

the law still allows another Hamzah Abu Samah to be reborn. According to Yatim (2012),

while being an Attorney General, he was also a Member of Parliament for Temerloh and the

Minister of Law. This is a proof of Malaysia's poor separation between components of the

government.

The Clause 3A of Article 145 is new in the legal sense as it was only legislated circa

1988, around the time of the infamous constitutional crisis of Malaysia under the reign of Tun

Mahathir Mohamad. This might be his attempt to strengthen his grip on each organ of the

government accompanying the dismissal of the Chief Justice which had been done

outrageously, in which he denied his involvement, Mahathir’s failure to illegalise The Asian

Wall Street Journal which had been steadily criticising some corrupt officers of the

government, the legal matters regarding ​Operasi Lalang​ and the establishment of ‘old

UMNO’s’ remnant of Parti Semangat 46 (Azhar, 2017; Ismail, 2018; Means, 1991; Pegawai

Pusat Penyelidikan PAS, 2017). Any sane mind, after knowing these dark moments of our

legal-political histories will develop an assumption whereas everything was a political ruse,

and he concentrated the powers towards him and his cronies to secure his regime. He had been
THE ATTORNEY GENERAL’S POWER SHOULD BE DIMINISHED 5

described as “former dictator who wrecked so much damage” by Nurul Izzah Anwar (Malay

Mail, 2019), “assertive” by Hadi Awang (Sarabatin, Ibrahim & Parzi, 2019), “mahafiraun”

(Sukumaran, 2018) and “self-serving and evasive” (Siang, 2004).

All of these labels were not thrown to topple the ruling government as mere slander; it

could account for legal charges and expensive proceedings. There is a hint of the unknown

truth behind all of these bold statements, and hence, this is the big reason why we should not

centralise the power to single individuals. Tun Mahathir, even with constitutional restriction,

had managed to get these labels which implied his ‘dictatorship’; it can be deduced that more

powers spell may lead to more trouble. In a bright sight, Hamzah Abu Samah is a good man as

far as history is concerned. The former Prime Minister, Datuk Seri Najib Razak had been

reported to view him as “... among the political figures who helped to lay the foundation for the

new nation after independence and that he continued to serve the people, religion and country”

(Bernama, 2012, He also described Hamzah, para. 10).

Generally speaking, good motives will render good consequences, and ill-willed power

holders will bear bad results. The liberty-seeking mentality from oppressive governance drove

Baron de Montesquieu to coin the concept of ​trias politica i​ .e. the separation of the powers

(National Conference of State Legislatures, 2019). Therefore, the Attorney General’s power

should be diminished as the current scope violates the doctrine of separation of power.

A thing to ponder: Is the doctrine of ​trias politica​Islamic?

Islamic laws have a broader application if compared to the doctrine of separation of

powers as it focuses on the end goals; to prevent a tyranny of the power, rather than focusing

on the method taken to achieve the goal (Salameh, 2017). As long as the method is taken to
THE ATTORNEY GENERAL’S POWER SHOULD BE DIMINISHED 6

rule nods to the final objectives, any doctrine can be applied to an Islamic government. Islamic

governance, from the way to elect leaders to the matters on policymaking, does not have a rigid

and definitive ruling. Shamrahayu (2015) also emphasised that both things could coexist

harmoniously. This might be the very ingredients to six decades of peace that had been enjoyed

across the States of Malaysia.

Extreme views of some religious groups including, but not limited to, Hizbut Tahrir

where they claimed that democracy is a stranger to Islamic teachings is not the view of the

whole Islamic community and hence is considered as illegal in Malaysia (Zulkifli, 2018). The

most suitable Islamic political philosophy is the concept of ​Manhaj Maliziy​ which had always

been the agenda of Muslim Youth Movement of Malaysia (ABIM), where scholars and jurists

select the most suitable principles to be practiced according to local customs and circumstances

(Zulkifli, 2019). Nevertheless, the concepts of democracy should be viewed with an Islamic

standpoint; this is the best way as a Muslim who dwells in Malaysia.

Attorney General can represent as a prosecutor

The roles of Attorney General and the Public Prosecutor are fused shut starting from

the Reid Commission Report 1957. Aira & Jiet (2016) highlighted a commentary in the Reid

Commission paragraph 127, page 56:

In some Commonwealth countries, the Attorney-General holds a political

office. In others, the political functions, normally exercised by a political Attorney-

General, are exercised by a Minister of Justice or Minister of Law, while the Attorney-

General (or Advocate-General) exercises the more professional functions of giving

independent legal advice to the government, representing the government in the

THE ATTORNEY GENERAL’S POWER SHOULD BE DIMINISHED 7

courts, and perhaps assuming responsibility for public prosecution. On the whole, we

prefer the latter.

The sentence ‘assuming responsibility for public prosecution’ shows the Reid

Commission allows the Attorney General to act as Public Prosecutor. No one knows why but it

seems they did not foresee the upcoming problems of the fusion power, plus it was common in

Commonwealth countries at that time.

Based on this result, Section 418A (2) includes another power of Attorney General to

represent as Public Prosecutor. This speciality was conferred in Clause (1) as it says he can

exercise as Public Prosecutor in any criminal cases either in subordinate courts or High Court.

However, the Attorney General requires a specific certificate as the procedure to represent as a

prosecutor in the High Court. As Attorney General is Chief Legal Advisor of the State, he

automatically also a Chief Prosecuting Officer in Malaysia.

As time passed, people started to realise how horrific the blatant decision made by the

Reid Commission. This is due to the position of Attorney General is political favouritism; the

individual will change in favour of the ruling party. Nevertheless, Reid Commission

commentary was not refused by any members of the committee in 1957, rendering the Federal

Constitution to adopt the consequences.

Article 145 (1) of the Federal Constitution explicitly says it was the Prime Minister

who advised Yang di-Pertuan Agong to appoint his recommended person to occupy the

Attorney General position. The so-called ‘advice’ here implies a command; Yang di-Pertuan

Agong shall listen and accept the command from the Prime Minister.
THE ATTORNEY GENERAL’S POWER SHOULD BE DIMINISHED 8

The judicial power of the Attorney General is interrelated with the Prime Minister, the

prime executive. There is no problem with that fact however the reception of the public may

change as the Attorney General can be the ‘sword and shield’ for the politicians as the

Attorney General has every power of prosecution. As a matter of fact, the Attorney General is

well-versed in law as he or she is on par with a Federal Court judge according to Article 145

(1) of the Federal Constitution.

The best illustration is the report of ​The Malaysian Bar vs. The Attorney General of

Malaysia & The Malaysian Anti-Corruption Commission: The Moment the Malaysian Bar

Stood Up for the Key Institutions of State​ (Das, 2016) where Malaysian Bar challenged why

the Attorney General did not charge the Prime Minister, Dato’ Seri Najib Abdul Razak at that

time due to accusation of 1Malaysia Development Berhad (1MDB). This case also remarks the

first court action to challenge the prosecutorial powers of Chief Prosecuting Officer, i.e. the

Attorney General.

The answer why the Attorney General will never charge the Prime Minister is

straightforward. According to Kamarulzaman, Z. (2016) Former Court of Appeal Judge, Datuk

Mohd Noor Abdullah said:

The Attorney General is appointed by the Yang di-Pertuan Agong, by the advice of the

Prime Minister. That means, his or her fate will fall under the Prime Minister for that

position. Did you expect the Attorney General will charge the Prime Minister? The

answer is no.

Aira & Jiet (2016) mentioned why these two offices, i.e. Attorney General and Public

Prosecutor, should be separated? There are three reasons which are to prevent conflict of
THE ATTORNEY GENERAL’S POWER SHOULD BE DIMINISHED 9

interest, to give independence to both offices and lastly to combat corruption. These points are

truly straightforwardly logical and undeniable.

Therefore, the Attorney General’s power to represent as a prosecutor should be

relinquished as it is against the rule of law and may pose a risk of imbalance by benefiting only

a certain group of people. This is truly against the meaning of ‘no one above the law’ and could

invoke public misgivings and eventually erode public confidence towards the government.

This will render more catastrophe if it happens amid a widespread national disaster such as the

currently-faced pandemic.

Attorney General can stop or continue charges in a court of law

Article 145(3) of the Federal Constitution provides wide discretionary powers to the

Attorney General to stop or continue any criminal proceedings in any courts. Furthermore, it is

also irrefutable by anyone, including the court of law. Aira & Jiet (2016) highlighted a quote

from Tun Mohamed Suffian in the case of ​Long bin Samat & Ors. v. Public Prosecutor​ ​(1974)

2 MLJ 152​:

In our view, this Clause [Article 145(3)] from the supreme law clearly gives the AG

very wide discretion over the control and discretion of all criminal prosecutions. Not

only may he institute and conduct any proceedings that he has instituted, and the courts

cannot compel him to institute any criminal proceedings which he does not wish to

institute or to go on with any criminal proceedings which he has decided to discontinue.

Direct interpretation can be understood by this comment from Lord President Tun

Mohamed Sufian that even the courts cannot intervene Attorney General’s choice to stop or

continue any criminal trials. However, there is a more recent case that has been discussed by
THE ATTORNEY GENERAL’S POWER SHOULD BE DIMINISHED 10

Aira & Jiet (2016), i.e. the case of ​Dato’ Pahlawan Ramli bi Yusuf v. Tan Sri Abdul Gani

Patail & Ors [2015] 7 MLJ 763:​

Where Judicial Commissioner Vazer Alam Mydin emphasised that absolute immunity

for any Public Prosecutor (including Attorney General) has no place in a progressive

democratic society and contrary to the rule of law.

As can be seen the evolution of judicial review by the latest court also realised that

there should be limits on the Attorney General’s powers.

There are numerous controversial cases where the Attorney General dropped the

charges that caused negative receptions by the majority of the public, i.e. the dropped case of

Prof. Azmi Sharom for charges of sedition, the acquittal of Musa Aman for charges of

corruption, charges of murder and investigation against the group of suspects in Firefighter

Adib’s case and Liberation Tigers Tamil of Eelam (LTTE) for charges of terrorism.

Most Attorney General would not give a reason why they stop or continue the charges

as the wide discretionary power provided by Article 145(3) of the Federal Constitution is

unstoppable. Giving reasons or not, if the Attorney General would like to drop that particular

criminal charge, it will drop. No one can question his or her decision.By this reason alone, it

shows how significant to diminish the power of the Attorney General, especially the wide

discretionary power to stop or continue any criminal charges given to the Attorney General.

In conclusion, there is a necessity to diminish the current power of the Attorney

General as he or she is open to abuse of power. This writing promotes that Article 145 of the

Federal Constitution and Section 418A of Criminal Procedure Code shall be amended. The
THE ATTORNEY GENERAL’S POWER SHOULD BE DIMINISHED 11

conflicts of interest by two different offices (Attorney General and Public Prosecutor) and

political influence may corrupt anyone who possesses the position of the Attorney General.

According to (Islamweb.net, 2019), this article provides two verses in Quran which

forbade injustices and misuse of power. The first verse is 16:90, Allah says:

Indeed, Allah orders justice and good conduct and giving to relatives and forbids

immorality and bad conduct and oppression. He admonishes you that perhaps you will

be reminded.

The second verse in Quran is 8:27 He says:

O you who have believed, do not betray Allah and the Messenger or betray your trusts

while you know [the consequence].

How are these verses related? According to ​(Islamweb.net, 2019),​ the word

‘oppression’ and the sentence ‘betray your trusts’ is a general warning to those people who

may bring unjust and misused limited power. These verses also were mentioned for everyone,

not only to the leaders, politicians including the Attorney General.

Therefore, the roles of Attorney General should be focused on advising legal matters to

Yang di-Pertuan Agong, Cabinet and the Ministers. Lawmakers must put aside each and every

political differences and focus on a common goal for a better Malaysia.

THE ATTORNEY GENERAL’S POWER SHOULD BE DIMINISHED 12

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