Crucial for Malaysia to have a functioning Attorney-General immediately
3 June 2018
We refer to the status of the current Attorney-General Apandi Ali and the appointment of a new A-G.
There should be no further delay in terminating the services of Apandi Ali, who has been forced to go on leave.
It has been expressly announced that Apandi does not enjoy the confidence of the new Prime Minister and his reforming government. Under Article 145(5), the A-G holds office at the pleasure of the King.
This means that the A-G can be removed or terminated whenever the PM advises the King to do so.
There is no requirement for a tribunal to remove the A-G; neither is there a need for an enquiry in order to terminate his services.
This is reinforced by Article 132(2A) which states that a member of the judicial and legal service holds office at the pleasure of the King. ( The A-G is a member of the judicial and legal services.)
In short, the A-G’s services can be terminated at any time by the King by virtue of Article 145(5), if the PM advices His Majesty to do so.
Apandi has no legal recourse when his services are terminated; he must go.
The best thing he can do now is to quit honourably, before he is ignobly forced out.
On the appointment of a new AG, Article 145(1) provides that the King shall do so ‘on the advice of the Prime Minister.’ This should be read with Article 40(1A), by virtue of which the King is bound to act upon the advice of the PM or Cabinet.
The King may act in his own discretion only in the limited circumstances stated in Article 40(2), such as the appointment of PM or dissolution of Parliament. This Royal discretion does not include the appointment of an A-G, which must be in accordance with the advice of the PM.
To summarise, the termination of the current A-G and the appointment of a replacement by the King, must both be done upon the advice of the PM.
Constitutionally and legally, it is entirely up to the Prime Minister of the new administration elected by the people, to pick the appropriate person to be A-G.
Any further delay in appointing a new A-G is bound to hold up or disrupt the important institutional and legal reforms now expected by the people, as well as the widely expected prosecutions in the massive 1MDB financial scandal.
As things stand, Malaysia has no functioning A-G. This situation cannot be allowed to continue.
Lawyers for Liberty