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1
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.
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