By Gerard Lourdesamy
There has been a great deal of speculation and comment on the appointment of the next Attorney General (AG) to replace the incumbent Mohamed Apandi Ali who has been placed on garden leave by the Pakatan Harapan (PH) federal government.
It is not necessary at this juncture to comment on the allegations made against the incumbent AG even if justified because the office of the AG is held at the pleasure of the King and as such the AG can be dismissed or removed by the King on the advice of the prime minister. This is provided for in Article 145 (5) of the Federal Constitution.
It does not matter that the current AG is on a contract. He can still be dismissed for cause or at the will of the government irrespective of the contract. The AG cannot sue the government on the contract and claim for damages arising from such a dismissal. This proposition was made amply clear by the Federal Court in Hj Ariffin v Government of Pahang [1969] 1 MLJ 6. In effect, the apex court held that there was no fetter on the power of the Ruler to dismiss at pleasure, statute or contract any public officer in the service of the State.
The appointment of the AG is a matter that is relatively straightforward provided that all parties adhere to and respect the very clear provisions in the Constitution and have an understanding of their role in the appointment process.
Article 145 (1) of the Constitution provides for the appointment of the AG by the King on the advice of the prime minister. The person to be appointed must be a person qualified to be appointed as a judge of the Federal Court.
The qualifications required for the appointment can be found in Article 123 namely: (a) he is a citizen; and (b) for the ten years preceding his appointment he has been an advocate of those courts or any of them or a member of the judicial and legal service of the Federation or of the legal service of a State, or sometimes one and sometimes another. Courts here means the Federal Court, the Court of Appeal and the High Court in Malaya or the High Court in Sabah and Sarawak.
In making the appointment the King must act on the advice of the prime minister. This is mentioned in Article 145 (1) itself. Acting on the advice is explained in Article 40 (1) and (1A) of the Constitution. It is very clear that the King has no discretion in the matter. He must accept the advice of the prime minister and act in accordance with such advice. Both the Federal Court and the Court of Appeal in the context of appointments to the judiciary and the cabinet have held that the actual appointing authority is the prime minister and that the King could not but follow the decision made by the prime minister. Legally, the prime minister can insist that the appointment be proceeded with even if the King disagrees, withholds or delays giving his consent with or without reasons. Refer to Datuk Seri Anwar Ibrahim v Public Prosecutor [2000] 2 CLJ 570 and Datuk Seri Anwar Ibrahim v Perdana Menteri Malaysia & Anor. [2007] 4 MLJ 422.
Under the Constitution the only matters in which the King retains a discretion in the exercise of his prerogative powers is provided for in Article 40 (2) namely (i) the appointment of the prime minister; (ii) the dissolution of Parliament; and (iii) to convene meetings of the Conference of Rulers.
There is also no requirement under Article 145 (1) of the Constitution for the King to seek the advice of the Conference of Rulers or to consult with them on the appointment of the AG. In any event, the Federal Court and the Court of Appeal have correctly held that consult does not mean consent in the context of the Conference of Rulers and the King is not bound by the advice of the other Rulers on such matters as for example the appointment of the judges of the superior courts.
It must be noted that the King is only required to consult with the Conference of Rulers when it comes to the appointment of the superior court judges under Article 122B; the appointment of the Election Commission under Article 114 (1) and the appointment of the Auditor-General under Article 105 (1) of the Constitution. Some federal laws may provide for such consultation.
Article 145 (1) of the Constitution does not require that the AG must be a Malay and Muslim. In fact, constitutionally speaking, even the prime minister need not be a Malay and Muslim, see Article 43 of the Constitution. If such a condition is imposed by the appointing authority in relation to the AG then it would be unconstitutional if not unlawful under Articles 8 (1) and 136 of the Constitution.
In fact, Article 136 expressly provides that there shall be no discrimination based on race in the service of the Federation. The AG is a public officer under the Constitution, see the Supreme Court in Tun Mohamed Salleh Abas v Abdul Hamid Omar & Ors. [1988] 3 MLJ 149. Therefore, the appointment of the AG cannot be clouded by considerations of race and religion.
In the past non-Malay and non-Muslim AGs have been appointed even after 1957. For example Thomas Vernor Alexander Brodie and Cecil M Sheridan. Both were British and Christians.
The Attorney-General’s Chambers is dominated by senior Malay/Muslim heads of divisions and officers except for the Civil Law Division. The Solicitor-General Engku Nor Faizah Engku Atek is a Malay/Muslim. There is a Shariah Law Division within the chambers that is headed by a Malay/Muslim. These senior officers can advise the King on Syariah law matters if and when the Sovereign requires such advice.
In any event under the Constitution, the role of the King in Islamic matters is only limited to the Federal Territories of Kuala Lumpur, Putrajaya and Labuan, and the states of Melaka, Penang, Sabah and Sarawak. And, even then, the King could be advised by the respective Mufti and religious councils.
Lastly, the role of a constitutional monarch is not to govern but to ensure proper governance. There must be mutual trust and confidence between the Sovereign and his government. As Dicey, properly explained the Sovereign is the dignified part of the constitution while the government is the efficient part.
Notwithstanding our written constitution, the King has the right to be consulted, the right to encourage and the right to warn. Apart from that, it is not the place of the Sovereign to impose his will on the government or to impede the governance of the country whatever his motives may be. At the end of the day, it is the elected government that represents the will and power of the people and not hereditary institutions.
Gerard Lourdesamy is a practising lawyer and an FMT reader
The views expressed are those of the author and do not necessarily reflect those of FMT.