The Attorney General’s powers in Malaysia are broad and discretionary under Article

145 Federal Constitution (FC). However, Sundra Rajoo case highlights the limitations on
the AG’s discretion and the possibility of judicial review in exceptional circumstances. This
essay will delve into the roles of the AG as mainly prescribed under Art.145 FC and examine
critical cases that challenged the extent of the Attorney General’s power. Moreover, it will
explore the criticism of AG’s power and potential reform that could address the concerns of
AG’s power to enhance the transparency and accountability of this vital office in Malaysia’s
justice system.
The appointment of AG is carried out by YDPA on the Prime Minister's advice as
underlying in Art.145(1) FC. The appointed individual must be entitled to act as a judge in
the Federal Court. Moreover, Art.145(5) FC allows AG to be a political or non-political
appointee, holding the position at the pleasure of the YDPA with no fixed tenures and the
choice to resign at any time. At the same time, it is subjected to Art.145(6) FC, the interdict
against the discharge from the office, apart from the identical reasons and identical way as the
Federal Court judge was dismissed. The prime minister is playing a significant role in the
appointment of AG. Despite the constitutional provisions, criticism about the impartiality of
AG's appointment and resignation is being pointed out. Steven Thiru (2020) argued that
Adul Gani's removal by then PM Datuk Seri Najib was unconstitutional because, following
Art135(2) FC, there is a reasonable opportunity to be heard. Zainal H. (2015) agrees that the
AG is constitutionally mandated and must be removed through due process. Briefly, the
appointment and removal of AG, based on the Prime Minister's advice, has been criticised for
being misused and abused for personal benefit.
Besides, AG in Malaysia holds a dual role as the chief legal advisor to the government
and the public prosecutor. According to Art.145(2) FC, AG is responsible for providing legal
advice to the YDPA, the cabinet and other ministers and performing other duties mentioned
in FC or any written law. Additionally, Art.145(4) FC gives the AG a significant role in legal
proceedings by having the right to speak in any court and taking precedence over anyone.
Meanwhile, the AG must prosecute criminal cases independently under s376 CPC. The AG
upholds the rule of law by advising the government to follow the law and prosecuting
criminals regardless of their background. However, the dual role of the AG is highly
criticised as violating the rule of separation of power. AG operate under the executive branch
by working with the government while holding the public prosecutor controls criminal
proceedings as part of the judiciary branch. It is supported by Richard Foo (2010), who
stated that merging the AG and public prosecutor roles creates a conflict of interest. When
prosecuting a government official, there will be a conflict of interest. Shortly, a person that
holds the position of Attorney General and Public Prosecutor will raise an issue about
separation of power.
Furthermore, Art.145(3) FC grants AG to institute, conduct, or terminate any
proceedings for an offence, apart from proceedings before a Syariah Court, martial court, or
native court. It is illustrated in Long bin Samat v PP 1974, as it demonstrates that AG can
dismiss any criminal proceedings he decides not to institute. The court has no right to
intervene in any AG's decision. However, AG's sole power in the country contradicts the rule
of law. It is supported by Raja Azlan's judgement in Dato' Pahlawan Ramli bin Yusuff v PP
2015 by emphasising the absolute immunity of the public prosecutor's decision. The
Constitution has placed the public prosecutor above the law since the court cannot question
his decision. Therefore, the power of AG being granted is broad and discretion and raises the
issues of violating the rule of law and the potential for unchecked authority.
Moreover, adopting Art.145(3A) FC, AG has the power to select the court or venue for
proceedings under Art.145(3) FC. Subsequently, it is legitimised by s418A CPC, wherein in
a criminal trial, the public prosecutor has the authority to issue a certificate transferring a case
from a subordinate court to a high court. In the case of Datuk Haji Harun v PP 1977, AG's
decision to require the transfer of the case to the High Court for trial cannot be subjected to
an objective test and is not amenable to judicial review. Furthermore, Johnson Tan Han
Seng v PP 1977 shows that AG's power is not subjected to Art.8 FC by changing the
appellant's charge. These cases appear to seal the fate that the AG's discretion is far beyond
the judiciary's reach to even question under judicial review. It is affirmed that Raja Azlan
state that unrestricted discretion is a logical contradiction. I believe preventing dictatorship is
a crucial legal limit for legal power, including the proper and reasonable exercise of
discretion. Hence, if unchecked, the AG's broad discretionary power could potentially lead to
an abuse of power, which is a severe concern for safeguarding against potential misuse of
authority.
In addition to the AG's constitutional duties, AG is also responsible for safeguarding
public interest by lending their name to the member of the public who seek legal intervention
to protect their rights. Technically, the AG is a civil servant and does not have to consult
anyone, including the PM, when exercising their powers about criminal prosecutions. This
implied that even the PM and the cabinet potentially be charged in criminal proceedings by
the AG. However, this raised concerns about the AG's office's lack of independence and
impartiality, highlighted in cases such as Lim Kit Siang v UEM 1988 and the Government
of Malaysia v Lim Kit Siang 1988. Nonetheless, it is worth noting that if the AG fails to act
fairly, this can be raised in Parliament, providing a check on the AG's actions and ensuring
accountability. Thus, AG's role in safeguarding public interest in Malaysia raises concerns
about AG's independence and impartiality.
Due to the issues that demonstrate the AG's power is arguable, there are some
suggestions for reform. Firstly, TI-M suggested that the role of AG should be separated from
the position of public prosecutor. By imitating the UK in setting up the CPS, AG can transfer
its prosecutorial powers to the director of the public prosecutor, the head of CPS. Applying
this can uphold the separation of powers by ensuring prosecution decisions can be made
without political interference. Secondly, Richard Foo suggested that AG's decision be
subject to judicial review. For example, in the Sundra Rajoo case, the court held that AG's
decision would not be immune from judicial review if AG exercised power in bad faith. This
holds AG accountable for its actions and ensures the legal system's independence,
impartiality, and fairness. Thirdly, Dr Raman Letchumanan recommends changing the AG
appointment process in Malaysia by including a parliamentary select committee to inform the
Prime Minister of qualified candidates. By modifying the AG appointment process, only the
qualified individual is selected for the role. Overall, those reforms will avoid the
concentration of power and enhance the impartiality of the legal system.
In conclusion, there are broad and discretionary powers held by AG in Malaysia under
the FC. However, the Sundra Rajoo case emphasises the necessity of keeping these power in
check and making them subject to judicial review in specific circumstances. Other than that,
certain reforms about AG need to be implemented to maintain proportionate power and
transparency within the Malaysian legal system by upholding the principle of the rule of law
and separation of power.