WHEN I joined the Attorney-General’s Chambers in July 1970, I had (in practical terms) two bosses — Attorney-General Tan Sri Abdul Kadir Yusuf (a political appointee) and Solicitor-General Datuk (later Tun) Mohd Salleh Abas (a civil servant and member of the Legal and Judicial Service).
The former used to ask me from time to time to represent him delivering talks on the Federal Constitution and the Malaysian Legal System to a wide range of audience, whilst the latter dished out all kinds of legal work for me to attend to.
At that point in time, we did not have legal advisers attached to the various ministries and departments. Consequently, if any legal advice from either the attorney-general or solicitor-general was needed, officers from these ministries and departments would have to come physically to our chambers at Jalan Raja Laut, Kuala Lumpur for consultation and advice.
As far as I can remember, Abdul Kadir and Tan Sri Hamzah Abu Samah were the only two politically appointed A-Gs in our country.
The principal role of the A-G is to advise the government (Article 145(2) of the Federal Constitution). In his capacity as the Public Prosecutor, the A-G has the discretionary power to “institute, conduct or discontinue any proceedings for an offence, other than proceedings before a Syariah court, a native court or a court-martial” (Article 145(3)).
Section 376 of the Criminal Procedure Code (CPC) states that, “The attorney-general shall be the Public Prosecutor…”.
During my stint at the chambers, all prosecutions were handled under the direction of the solicitor-general whilst the attorney-general devoted his attention to his political duties. Much later, after I left the service, A-Gs Tan Sri Abu Talib Othman and Tan Sri Abdul Ghani Patail were heavily involved in prosecution work, especially in high-profile cases.
Under Tun Dr Mahathir Mohamad’s administration (in the 1980s), the position of A-G changed from that of a political appointment to that of a civil servant. In the United Kingdom, the A-G and S-G are both political appointments.
The director of Public Prosecutions (DPP), the equivalent of the public prosecutor in Malaysia, is a public servant in the UK.
In short, there is a clear division of work in that country, with a political appointee A-G to advise the government, and a public servant, DPP, to take charge of all criminal proceedings. In Malaysia, both functions are discharged by the same person as a civil servant, the A-G.
Malaysian Bar president George Varughese was recently quoted as saying that the Malaysian A-G has two distinct roles under the Federal Constitution — as the principal legal adviser to the government and also as the Public Prosecutor (PP).
In his role as the PP, the A-G is required to act independently and impartially, uninfluenced by any political considerations. Varughese, therefore, believes that it is crucial to separate the office of the A-G from the office of the PP.
There should be a separate director of Public Prosecution (DPP) empowered to make decisions on matters of prosecution, he said.
Varughese added: “The new A-G should be a career lawyer and not a politician-lawyer, uninvolved in partisan politics, and widely seen and accepted as independent and able to implement law reforms of the new government impartially.”
In plain language, the Malaysian Bar wants the Attorney General to be a civil servant, not a politician as the late Tan Sri Abdul Kadir, and at the same time a Director of Public Prosecution to be appointed as in the case in the United Kingdom.
In Lim Kit Siang v U.E.M [1988] 2 MLJ 12, Justice V.C. George said: “In Malaysia, the A-G’s position is very different from that of his British counterpart. He is a civil servant appointed by His Majesty the Yang Di Pertuan Agong on the advice of the prime minister. He is not answerable to anybody, neither to any minister nor to any ministry, not even to the prime minister, not to Parliament and to the people (in that his is not a political appointment)..”
In Long bin Samat & Ors. v. Public Prosecutor (1974) 2 MLJ 152, Tun Suffian (Lord President) said that Article 145(3) of the Federal Constitution gives the A-G very wide discretion over the control of all criminal proceedings. If there is anyone who is dissatisfied with the A-G’s decision not to prosecute, the Lord President said, “he should seek his remedy elsewhere but not in these courts”.
It should be noted that when this decision was made, the A-G was then a political appointee, not a civil servant.
As to what the future scenario should be, the following questions need answers — should the status quo remain (A-G as a civil servant and as a Public Prosecutor)? Should the status quo be changed (A-G and PP two different persons)? If changed, should the A-G (as adviser to the government) be a politician, answerable to Parliament?
If the functions of A-G and PP are separated, should the Public Prosecutor be a civil servant with security of tenure? If the functions are separated, should the Public Prosecutor be required to consult the A-G — in all cases, or in some specific cases only?
If anyone is unhappy with the discretionary power of the Public Prosecutor, where can he go to get his remedy, the A-G, courts or Parliament?
Senior lawyer Tommy Thomas has just been appointed as the new A-G following the departure of Tan Sri Mohamed Apandi Ali. His status is that of a civil servant (on contract), unless the government decides to make him a senator, thereby making him our new political A-G.
Salleh Buang formerly served the Attorney-General’s Chambers before he left for practice, the corporate sector and, then, the academia