WHEN Prime Minister Dr Mahathir Mohamad said on Saturday that the country “has no attorney-general”, did that mean Mohamed Apandi Ali had already been removed?

Some observers believed Dr Mahathir’s comment presented a legal conundrum as Article 145 of the federal constitution states that the AG “shall not be removed from office except on the like grounds and in the like manner as a judge of the Federal Court”.

Others lawyers added that Apandi, appointed as A-G in 2015 under the Najib Razak administration, could only be removed after a tribunal hearing.

Some believe Apandi must be given the right to be heard while others said he can be removed because he holds office at “the pleasure of the Yang di-Pertuan Agong”.

“Basically he can be removed by the King who must act on the advice of the cabinet, or minister acting under the general authority of the cabinet, via Article 40(1) of the federal constitution,” said Anwar Ibrahim’s lawyer, Gurdial Singh Nijar.

Gurdial, a former law professor at Universiti Malaya maintains that the A-G is a public or civil servant, and as such does not have security of tenure.

“They hold their office at ‘the pleasure of the Yang di-Pertuan Agong’ under Article 145(5),” Gurdial said.

Another clarification, Gurdial said, was that Dr Mahathir’s as head of government had terminated, not dismissed, the A-G’s services.

“Termination under a contract differs from a dismissal which involves a penalty or punishment. If the termination is in accord with the A-G’s contract, fine. If not can the termination be wrongful for breach of contract? The Federal Court decided in 1969 that a contractual right could not override the cases which decided that a servant of the crown held office at pleasure: Haji Ariffin v government of Malaysia.

“The general upshot is that constitutionally, the prime minister has the final say for the removal of the A-G. After all he is the government’s legal adviser; and the ‘client’ has the right to ‘change’ his lawyer at any time.”

This was how the former A-G Gani Patail, whom Apandi replaced, was abruptly removed in July 2015, as a special task force was in the midst of investigating 1Malaysia Development Bhd.

The King, on the advice of the prime minister, then consented to Apandi’s appointment as the new A-G.

The view that an A-G can only be removed from office on “like grounds and in the like manner as a judge of the Federal Court” is based on Article 145(6), but Gurdial said this article was meant only for the incumbent A-G in 1963, because of the wording “the person holding the office of the A-G immediately prior to the coming into operation of this Article”.

The article which was amended in 1960, only came into force on September 16, 1963, which is Malaysia Day.

“So the protection afforded to the A-G was removed by this amendment,” Gurdial said.

Gurdial also brushed aside suggestions that the A-G’s rank has been reduced and that he had not been given the right to be heard.

While public servants and members of the judicial and legal service are given the right to be heard before dismissal or a reduction in rank, the A-G is excluded from this under Article 132(4)(b).

“But aside from the role as a public prosecutor assigned to him by the constitution, the A-G continues to be the guardian of the public interest – a right which is vested in him under the common law. That is why the A-G lends his name by way of a relator action to any party seeking to protect the public interest.”

Gurdial added that the this episode “suggests a need to revisit the provisions relating to the A-G, in particular to secure his independence and security of tenure.” – May 13, 2018.