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Wednesday, August 12, 2015

The Dismissal of the Attorney General – negotiating the Constitutional minefield




The dismissal of the Attorney General by the Prime Minister recently raises serious Constitutional issues affecting the legality and hence, validity, of the dismissal.

Not much detail is known publicly on how the dismissal was orchestrated and effected.

However, from various reports, we know that on the 28th July 2015, the Attorney General was relieved of his office with effect from the 27th July 2015. The Attorney General reportedly said that he did not know of the dismissal until he was informed of it on the 28th. He refused further comment and has since then remained silent.

Let us now visit the relevant Constitutional provisions affecting the office of the Attorney General.


Who appoints the Attorney General?

Article 145 (1) provides that the King shall appoint the Attorney General. In appointing him, the King acts on the advice of the Prime Minister. In this respect the King does not have any discretion but to follow the advice of the Prime Minister.

Upon his appointment, the Attorney General holds office “during the pleasure of” the King. This is provided by article 145 (5).

During the pleasure of the King – the meaning

Holding office during the pleasure of the Crown is a Common Law rule. It is the prerogative of the Crown where all servants of the Crown will hold office during the pleasure of the Crown. They can therefore be dismissed at will by the Crown. This is otherwise known as “at pleasure doctrine”.

Upon the advent of the British colonialism, this concept found its way into the Constitution of many Commonwealth countries. In India, for example, members of certain services, including the Governors and the Attorney General, hold office during the pleasure of the President.
Although the doctrine  sounds as if the King or President, as the case may be, holds an absolute power to hire and fire, the Constitutional make up does not, in reality, afford the King or the President such absolute power.

In India, for example, article 74 of the Constitution provides that the President, being only a nominal head, must always act in accordance with the “aid and advice” of the Council of Ministers.

In addition, case laws in India, such as B.P. Singhal v. Union of India & Another Writ Petition (Civil) No. 296 of 2004 established that the doctrine in its absolute unrestricted application does not exist in India. That decision put paid to the theory that the doctrine grants unfettered discretion to act arbitrarily or whimsically to the President.

It is further said that while the doctrine enables the removal of a servant at the pleasure of the appointing authority, even summarily and without notice, such removal can only be good for valid reason(s).

In Canada for example, in the case of Wells v. Newfoundland 1999 (177) DL (4th) 73(SCC), the Court held that the “at pleasure” doctrine is no longer justifiable in the context of modern employment concept.

In Malaysia, within the Constitutional framework of the country, it therefore remains to be seen whether Article 145 (1) would be interpreted by our Courts in a way that gives an unfettered discretion to the King to dismiss the Attorney General at will and without valid reason.

The argument that such unfettered discretion does not exist, considering the Constitution being modelled after the concept of democracy governed by rule of law, would however be difficult to resist. Any pronouncement that the discretion to dismiss the Attorney General based on “at pleasure” doctrine is unfettered and absolute would make a mockery of the doctrine of separation of powers and open the provision to abuse and misuse.


How does the King exercise his powers?

This is not the first time this question has arisen. During the Perak power snatch, questions also arose as to how the Sultan exercised his powers under the State Constitution.

We have to go back to the basic.

The King in Malaysia is a Constitutional Monarch. That means his powers, duties and functions are specified and defined by the Federal Constitution. He must therefore only acts in accordance with the Constitution.

There are generally two types of powers that the King is possessed of in the Constitution. Firstly, the discretionary powers. These are the powers that the King may exercise on his own and without the advice of any party. There are only three discretionary powers that the King has:

i)                The power to appoint the Prime Minister;



ii)                The power to withhold his consent to a request for the dissolution of parliament;



iii)             The power to requisition a meeting of the Conference of Rulers concerned solely with the    privileges, position, honours and dignities of their Royal highnesses, and any action at such a meeting.




Secondly, the non-discretionary powers. These are the powers that the King may only exercise on advice.


The power to dismiss the Attorney General

As stated above, the King appoints the Attorney General on the advice of the Prime Minister. The Attorney General than holds office during his pleasure. The King may therefore dismiss the Attorney General (it is arguable that he can only do so for valid reasons).

The question than is – how does the King dismiss the Attorney General? Can he do it on his own and without advice? If not, whose advice must he follow?

The power to dismiss the Attorney General is not a discretionary power. The King must therefore act only on advice.

Article 40 (1) is relevant in this respect. Essentially, this article provides that, whenever the Constitution does not expressly provide otherwise, the King shall only act:

i)                 on the advice of the Cabinet; or,



ii)               on the advice of a Minister acting under the general authority of the Cabinet.



In taking the advice, the King is also entitled to any information concerning the government which is available to the Cabinet.

As there is no express provision that says otherwise in the Constitution, it is clear that the in dismissing the Attorney General, the King must only act on the advice of the cabinet or a Minister acting under the general authority of the Cabinet.

Was there a cabinet meeting?

An important question than arises.

Did the cabinet meet and make a collective decision to dismiss the Attorney General? If so, when? Who attended? Were the reasons for the dismissal proffered, discussed and deliberated upon?

In other words, was there a meeting of the cabinet convened to discuss the dismissal of the Attorney General and a resolution for his dismissal duly passed at that meeting?

If there was no such meeting, the next question would be was there a Minister (the Prime Minister included) who was acting under the general authority of the cabinet who advised the King to dismiss the Attorney General? By convention, we can assume that the Prime Minister is the Minister who has the general authority of the cabinet.

However, is that really the case?

Even if the Prime Minister was the Minister who was under the general authority of the Cabinet to advise the King, two more important questions arise.

Firstly, can a Minister (or the Prime Minister) acting under a general authority of the cabinet act on his own and without consulting or at least, informing the cabinet, in advising the King to dismiss the Attorney General?

In this respect, it must be noted that under article 40 (1) cited above, the first option is for the cabinet to advise the King. For the cabinet to than properly and legally advise the King, the cabinet would have to meet and deliberate upon the matter and after addressing its collective mind to the issue at hand, the cabinet would then have to resolve to undertake such act.

Surely then, the Minister acting under the general authority of the cabinet would have to at least inform the cabinet of his or her decision to advise the King in any matter, more so, when the matter involves the removal from office of a person occupying a Constitutional position, such as the Attorney General.

Was the Prime Minister in a position of conflict?

Assuming the Prime Minister was acting under the general authority of the cabinet while advising the King to dismiss the Attorney General, another question arises.

This goes to the propriety of the advice and hence, its validity.

The question is – was the Prime Minister in a position of conflict to advise the King on the dismissal of the Attorney General?

It is common knowledge that the former Attorney General had established a special taskforce consisting of the Malaysian Anti-Corruption Agency; the police and the Bank Negara to investigate into allegations of wrongdoings in 1MDB and SRC. In fact, he was the head of that special taskforce.

That investigation was to look into any wrongdoings in 1MDB and SRC. In the weeks preceding the investigation, we know that there were expose by the Wall Street Journal and other publications about the sum of USD 681 million being transferred into bank accounts believed to be the Prime Minister’s account. (The Prime Minister has since admitted that there were “political donations” in his account.)

It is without doubt that the Honourable Prime Minister may be implicated in the investigations by the said special taskforce. Being so, it is respectfully submitted that the Prime Minister was in a position of conflict or potential conflict. That conflict of interest would surely, under the law, disqualify him from advising the King to dismiss the Attorney General.

In those circumstances, the Prime Minister ought to have relinquished his power to advise the King. Arguably, the proper person to advise the King would then be the Deputy Prime Minister. This could be formalised by a cabinet resolution giving the Deputy Prime Minister authority to do so.

More so in a case where no acceptable reason was given for the dismissal. In this respect, it is noted that the official reason was one of health. Apparently the former Attorney General has health problems. However, it is a known fact among the legal circle that the former Attorney General has had the health problems for some time and he did not find the necessity to resign from the problems. In any event, his term would lapse in the month of October this year.

The Prime Minister’s failure to disqualify himself from advising the King due to his conflict of interest renders his advice invalid and unconstitutional. The King had in fact and in law acted on a non-advice.


Conclusion

There is quite obviously a strong arguable case that the dismissal of the Attorney General was unconstitutional. Added to the issues here are also the issues raised by the President of the Bar Council on July 28th this year.

The general public is of course not appraised of all the facts leading to the dismissal of the Attorney General. Utmost in the mind of the general populace is whether there were valid reasons for the dismissal and whether the dismissal was done in a proper manner.

Of course, had there been a cabinet decision on the matter, the chorus of objection and ridicule would be less strident.

Even then questions would still remain on whether the dismissal was politically motivated or worse still, whether it was a part of a series of acts that were designed to stultify investigations into alleged wrongdoings.

The people cannot be blamed for speculating.

Especially in a climate where transparency is at a premium.