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SPEECH

YBHG. TAN SRI DATO’ SRI HAJI MOHAMED APANDI BIN ALI

ATTORNEY GENERAL OF MALAYSIA

AN ICM HIGH-TEA WITH THE

HONOURABLE ATTORNEY GENERAL OF MALAYSIA

“DUTIES OF THE ATTORNEY GENERAL”

DATE : 9th APRIL 2018 (MONDAY)

TIME : 3.50 P.M.

VENUE : DEWAN TAN SRI KADIR ABDUL YUSUF,

ATTORNEY GENERAL’S CHAMBERS

(NOTE: DURATION OF SPEECH – 20 MINUTES)

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Yang Amat Berbahagia Tun Arifin bin Zakaria,

The President of the Inns of Court Malaysia (ICM);

YAA Tan Sri Dato’ Seri Zulkefli Ahmad Makinudin,

President of the Court of Appeal of Malaysia;

My fellow brothers Yang Arif-Yang Arif Judges of the Federal

Court and Court of Appeal;

YBhg Tan Sri Abu Zahar Dato' Nika Ujang,

Retired President of the Senate

Yang Berbahagia Datin Paduka Zauyah Be T. Loth Khan

Solicitor General II;

Yang Arif Judges of the High Court and Judicial Commissioners;

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Professor Dato Dr. Ahmad Zubaidi Bin Abd Latif,

Vice Chancellor Of Universiti Sultan Zainal Abidin (UniSZA);

Head of Divisions of the Attorney General’s Chambers of

Malaysia;

Yang Berbahagia Tan Sri-Tan Sri, Puan Sri-Puan Sri, Datuk-

Datuk, Datin-Datin, Distinguished Guests, Ladies and

Gentlemen.

Assalamualaikum Warahmatullahi Wabarakatuh, a very good

afternoon and Salam Negaraku Malaysia.

1. First of all, let us offer our gratitude to Allah Subhanahu

Wata’ala for His grace that we are here in this august hall today.

Before we start, allow me to welcome all ICM members who are

present today to the Attorney General's Chambers (AGC). We

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are indeed honoured to open our doors to our fellow colleagues

in the legal fraternity especially for this event.

2. As you all know, today’s High-Tea is a joint collaboration

between the Inns of Court Malaysia (ICM) and AGC. Indeed, it is

a first step towards forging more AGC-ICM cooperation and

collaboration in the future.

3. One of the objectives of this event is to promote the Inns of

Court Malaysia to AGC officers. As projected on the screen

during the montage, ICM which was established on 10th

November 2016 is a professional membership body comprising

of judges, lawyers, jurists, legal academics and other legal

professionals from all backgrounds that provides a common

platform for exchange of views and ideas on many legal issues.

4. As at today, I was informed that there has been no AGC

officer who has signed up as a member of ICM except for myself

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and Yang Mulia Datuk Engku Nor Faizah, the Solicitor General.

On this note, I highly encourage AGC legal officers to register as

a member of ICM today.

Ladies and Gentlemen,

5. 27th July 2015; that is the date when I first took office as the

ninth Attorney General of Malaysia. For the past 2 years and 8

months, I have been humbled by the opportunity to lead such a

reputable legal institution like AGC. Being the Attorney General

is indeed a responsibility that I have to saddle regardless how

challenging it becomes. As Winston Churchill had once said:

“The price of greatness is responsibility.”

6. As you are all aware, the constitutional duty of the Attorney

General is as enshrined under Article 145 of the Federal

Constitution. I believe that to truly understand the duties of the

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Attorney General, it is rather important to learn about the history

behind this post.

Ladies and Gentlemen;

7. The origin of the office of the Attorney General can be

traced back to the year 1909, namely as early as during the

administration of the Federated Malay States of Perak, Selangor,

Pahang and Negeri Sembilan. Clause 5A of the Agreement for

the Constitution of a Federal Council 1909 provided that the

sittings of the Federal Council (which in today’s context,

equivalent to the Cabinet) shall be attended by the “Legal

Adviser” of the Government who was to assist in the discussion

of any legal questions which may arise in the course of its

proceedings.

8. With the establishment of the Malayan Union on 1st April

1946, the office of the Attorney General was created via section

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17 of the Malayan Union Order-in Council.1 However, the

provision did not specify the duties and term of office of the

Attorney General like in the current Article 145.

9. The Malayan Union as you all know were only transitory

before the establishment of the Federation of Malaya in 1948. It

was during the formation of the Federation of Malaya that the

Attorney General was accorded with a constitutional status and

functions.2

10. Subsequently, during the drafting of the Federal Constitution

1956, there was a debate on whether the Attorney General

should hold a political office or otherwise. Initially, there was a

suggestion advanced by certain quarters in the Reid Commission

that the Attorney General should become a political appointment

1 Section 17 - The ex-officio Members shall be the Chief Secretary, the Attorney-

General and the Financial Secretary. 2 Clause 84 of Federation of Malaya Agreement

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and be, presumably, if the Prime Minister wants it, a member of

the Federal Cabinet.3

11. However, upon its final recommendation at Paragraph 127

of the Reid Commission Report, it was recommended that the

Attorney General should not hold any political office but rather to

give professional and independent legal advice, defend

government in courts and conduct prosecutions.4

12. Subsequent to this recommendation, the Working Party to

the Constitutional Proposals for the Federation of Malaya or

widely known as the White Paper, has agreed to this 3 Minutes of the Reid Commission [CO 889] Page 398 4 Paragraph 127 of Reid Commission Report - 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 courts, and perhaps assuming responsibility for public prosecution. On the whole we prefer the latter. In the United Kingdom the political and the professional functions of the Law Officers are conventionally kept distinct and the latter are not regarded as within the jurisdiction of the Cabinet. It would be difficult to keep the functions distinct in a country exercising responsible government for the first time; and it is significant that India, Pakistan and Ceylon have all preferred the non-political Attorney-General. In the draft Constitution we have assumed this solution. though the United Kingdom practice of having political Law Officers has not expressly been excluded.

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recommendation and further proposed for the appointment of the

Attorney General be made among the members of judicial and

legal service and after consultation with the Judicial and Legal

Service Commission.

13. Thus, upon Merdeka Day in 1957, clause (1) of Article 145

of the Federal Constitution reads:

“The Yang di-Pertuan Agong shall, after consultation with the

Judicial and Legal Service Commission, appoint from among

the members of the judicial and legal service an Attorney

General, who shall be a person qualified to be a judge of the

Supreme Court.”

14. After three years, this provision was amended via clause 26

of the Constitution (Amendment) Bill 1960 which allows for the

Yang di-Pertuan Agong upon the advice of the Prime Minister, to

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appoint a person who is qualified to be a judge of the Supreme

Court to be the Attorney General.

15. The earlier requirement of an Attorney General to be

appointed amongst the member of the Judicial and Legal Service

was removed and the requirement for the Yang di-Pertuan Agong

to consult the Judicial and Legal Service Commission before

appointing an Attorney General was replaced with the advice of

the Prime Minister. This, to some quarters, was regarded as a

very controversial amendments affecting the independence of the

Attorney General.

16. In this regard, the then Prime Minister, Tun Abdul Razak

during the introductory speech on Constitution (Amendment) Bill

1960 which was tabled on 22nd April 1960 had explained the

justification behind this amendment. Allow me to read the excerpt

of his speech as follows –

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“The Government is of the view that with the progress of

our country and of our democratic institutions, it may prove

desirable at some future date to have an Attorney-General

as a member of the Government and a member of this

House. It may be convenient, and it may be desirable, for

the chief legal adviser to the Government to sit in this

House to explain and answer legal matters. Now, this

amendment makes it possible, should it prove desirable in

the future, to appoint an Attorney General from outside the

judicial and legal service.”5

17. Likewise, Yang Berbahagia Tan Sri Abdul Kadir Yusuf, who

was the third Attorney General cum the then Minister of Law

offered some rationalisations for the amendments in which he

said –

5 Parliamentary Hansard dated 22 April 1960

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“Two considerations tend to have weighed with the

government in making this change, that is, firstly, the

desirability of having in the public interest, the most

suitable person available to perform the onerous task of

that office, regardless whether he was appointed from

within or outside the public service…

… Clause (1) of Article 145, as it now stands, has restored

the normal position under the Constitutions of most

countries whereby the choice of Attorney General is left to

the discretion of the Government of the day, in much the

same way as the choice of holders of other appointments

of constitutional importance is, in reality, left to the

Government, for example, in the case of the appointment

of the Auditor General, the Judges of the High Court and

the Federal Court….”6

6 Abdul Kadir Yusuf in “The Office of Attorney General, Malaysia” (1977) 2 MLJ XVI XIX.

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18. Hence, it is apparent that the 1960’s amendment is meant

to strengthen the office of the Attorney General particularly to

enable the appointment of the best and most suitable person to

shoulder the responsibility of this esteemed post.

Ladies and Gentlemen,

19. Coming back to the duties of the Attorney General, in

Malaysia, the Attorney General has dual roles. The Attorney

general is the Government’s principal legal advisor as provided

under clause (2) of Article 145 as well as the Public Prosecutor

as stated in clause (3) of the same Article. This position is similar

in the other neighbouring countries such as Singapore, Brunei

and Indonesia.

20. As the Government’s principal legal advisor, it is my duty to

advise the Yang di-Pertuan Agong or the Cabinet or any Minister

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upon such legal matters, and to perform such other duties of a

legal character, as may from time to time be referred or assigned

to me.

21. In discharging my function as the principal legal advisor, my

paramount task is to ensure that any decision and actions taken

by the Government does not trespass the line of law. This

includes providing legal advice on any matters arising out of any

federal laws as well as on all aspects relating to international law

and Malaysia’s existing international obligations.

22. We also participated in international negotiations to ensure

that Malaysia’s rights and interests are protected and

safeguarded; and Malaysia’s international obligation under any

international treaties and conventions which have been signed,

agreed upon, ratified and acceded are carried out in accordance

with constitutional provisions and its domestic laws.

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23. Apart from advising the Government, Clause (2) of Article

145 also provides for the Attorney General to perform “other

duties of a legal character”. This includes the critical task of

translating the government policies into specific law. In drafting

the legislation, I have the duty to ensure that the proposed law is

not only of the highest quality but also consistent with the Federal

Constitution, existing legislation and Malaysia’s international

obligations.

24. In addition, under clause (5) of Article 42 of the Federal

Constitution, I am a member of the Pardons Board for all states

and the Federal Territories of Kuala Lumpur and Labuan. In this

capacity, I have the obligation to deliver my legal opinion,

recommendation and observation on every application for pardon

to be brought before the Pardons Board for their further

consideration and decision.

Ladies and Gentlemen,

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25. As I have mentioned earlier, in Malaysia, the Attorney

General is also the Public Prosecutor pursuant to Clause (3) of

Article 145 of the Federal Constitution, read together with section

376 of the Criminal Procedure Code. The Federal Constitution

has accorded the Attorney General with an absolute discretion to

institute, conduct or discontinue any proceedings for an offence,

other than proceedings before a Syariah court, a native court or a

court-martial.

26. In the landmark case of Long bin Samat v Public

Prosecutor7, the Federal Court held that the Public Prosecutor

has wide discretionary power to institute, conduct or discontinue

any proceeding for an offence under clause (3) Article 145 of the

Constitution.

7 [1974] 1 MLJ 152

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27. Tun Mohamed Suffian, the then Lord President interpreted

the scope and extent of this power of the Attorney General as

follows—

“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 …”

28. I cannot deny that it is a huge power exclusive only to the

Attorney General, but in the same breath, I wish to also stress

that it is a power in which its execution requires a greater degree

of responsibility.

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29. My obligation for an independent prosecution and

representation of community in court is among one of my public

interest duties. It requires me to apply my impartial evaluation

solely on evidence that is properly admissible, when deciding

whether to bring or to discontinue a prosecution.

30. As much as this power rest solely on my shoulder alone, I

always believed in the Islamic principle of ‘shura’ or

‘musyawarah’ which connote “consultation”. In this respect, the

decision on whether to proceed or not to proceed with a

prosecution is always made after a consultation with my fellow

colleagues particularly the Solicitor General II, the Head of

Prosecution Division and his Deputies.

31. This has been a long standing practice by my Chambers to

allow for facts and evidence to be evaluated from different

perspective and insights before a decision is made by the Public

Prosecutor. Deliberation of this kind often require the most

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delicate balance of judgement as it shall affect life and liberties of

a person.

Ladies and Gentleman,

32. As a person who has “been there, done that” at all juncture

of Malaysia legal landscape: be it as a magistrate, a DPP, a legal

advisor, a private lawyer, a judge of all level of the judiciary and

now as the ninth Attorney General, after 45 years of working

experience, I find that the only thing that I can be certain of is

that: no constitutional reforms, no amendments to laws and no

creation of new posts can assure good conscience and effective

execution of the functions of the Attorney General. It all boils

down to a person’s personal integrity and commitment to the

independent execution of the rule of law.

33. As the current Attorney General, my guiding principle has

been, and will continue to be, to serve as the guardian of public

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interest and the steward of the rule of law. I will continue to strive

to ensure that the constitutional functions of this office shall be

carried out competently, independently, and most definitely

without fear or favour.

Ladies and Gentlemen,

34. Before I end my speech, I would like to thank ICM and the

organizing committee for their hard work in ensuring the smooth-

sailing of this event. On that note, thank you very much for

joining us at this high tea and I wish you all an enjoyable time.

Wabillahitaufik Walhidayah Wassalamualaikum Warahmatulahi

Wabarakatuh.

Thank you.