4. The Attorney General The Attorney General plays a significant role in the judicial process and in the administration of justice. Under the law, the Attorney General is vested with wide powers and discretions especially where it concerns criminal prosecutions and public interests. Article 145, of the Federal Constitution provides for the appointment, duties and powers of the Attorney General. Appointment of the Attorney General The Attorney General is appointed by the Yang di-Pertuan Agong acting on the advice of the Prime Minister. The Yang di-PertuanAgong may appoint any person who is qualified to be appointed as a Federal Court judge as the Attorney General. Once appointed the Attorney General shall hold office at the pleasure of the Yang di-Pertuan Agong and may, at any time, resign from office. The power of the Yang di-Pertuan Agong in the appointment of the Attorney General is not a power which the Yang di-Pertuan Agong can act at his own discretion. The Yang di Pertuan Agong has to act in accordance with the advice of the Prime Minister. Effectively, therefore, it is the Prime Minister who has the power to appoint and dismiss the Attorney General. Duties of the Attorney General Generally, the duty of the Attorney General is to advise the Yang diPertuan Agong or the cabinet or any minister upon such legal matters, and to perform such other duties of a legal character, as may be referred or assigned to him by the Yang di-Pertuan Agong or the cabinet. It is also the duty of the Attorney General to discharge all other functions conferred on him under the Federal Constitution or under any other written law. It can be seen that the Attorney General is in fact the principal legal adviser to the Executive and forms part of the Government. He advises on legal matters and performs legal works for the Executive. Powers of the Attorney General A significant provision relating to the powers of the Attorney General is found in Article 145(3) of the Federal Constitution, which states;
The Attorney General shall have power, exercisable at his 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. This power ‘to institute, conduct or discontinue any proceedings' is exercisable by the Attorney General at his discretion, which means he is at liberty to decide as he thinks fit. Thus, where an offence is alleged to the Attorney General has power to that person. Where has initiated and started a prosecution in court, he has power to discontinue that proceeding. Further, Article 145(3A) states that : Federal law may confer on the Attorney General power to determine the courts in which or the venue at which any proceedings which he has power under Clause 3 to institute or to which such proceedings shall be transferred. These constitutional provisions giving powers to the Attorney General are further strengthen by the provisions in the Criminal Procedure Code which deals with the procedures for criminal prosecutions in the country. Section 376(i) of the Criminal Procedure Code states : The Attorney General shall be the Public Prosecutor and shall have the control and direction of all criminal proceedings under this Code and in Section 418A of the Code it is stated that : ... the Public Prosecutor may in any particular case triable by a criminal court subordinate to the high Court issue a certificate specifying the High Court in which the proceedings are to be transferred and requiring that the accused person be caused to appear or be produced before such High Court.
Thus, the Attorney General does not only have power to institute, conduct or discontinue any criminal proceedings at his discretion, he also has power to institute a proceeding in a High Court instead of a subordinate court or to transfer a proceeding from a subordinate court to a High Court specified by him. All these provisions give the Attorney General wide power to determine when- to prosecute, who to prosecute and where to do so. The effects and the extent of the powers conferred on the Attorney General have been recognized and confirmed by the courts in a number of decided cases and generally, the courts have given a broad interpretation of Article 145(3). In PP v Hettiaranchigae L.S Perera(6), the Federal Court that only the Attorney General has the power to institute, conduct and discontinue proceedings and until he makes up his mind the courts must wait. In that case, Sufian LP said : In our view, this clause from the supreme law (Federal Constitution Article 145(3)) clearly gives the Attorney General very wide discretion over the control and direction of all criminal prosecutions. Not only may he institute and conduct any proceedings for an offence, he may also discontinue criminal 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... Still less then would the court have power to compel him to enhance a charge when he is content to go on with a charge of a less serious nature. In Repco Holdings Bhd v PP(7), it was held that the exercisable by the Attorney General cannot be questioned in and cannot be the subject of judicial review. The Attorney General has unfettered discretion under Article
choose in which court to charge a person(8). He has complete whether to charge a person under one law or the other(9). In Teh Cheng Poh v PP(10), the Privy Council held that Article 145(3) has given the Attorney General wide discretion in criminal prosecutions and his power to exercise the discretion is not an infringement of the concept of equality before the law as provided in Article 8(1) of the Federal Constitution. The overriding consideration in giving such a broad interpretation to the powers of the Attorney General seems to be the fact that the Attorney General has to consider many relevant factors including public interests before deciding to charge a person for an offence. He has to give an unbiased consideration and his decision should not be dictated or influenced by some irrelevant consideration. Power to Bring Relator Action Under the common law, the Attorney General, as the protector and the defender of public interests, has power to bring an action to restrain interference with a public right or to abate a public nuisance or to compel the performance of a public duty. In A-G at and by the Relation of Pesurohjaya Ibu Kota Kuala Lumpur V Wan Kam Fong (11), the court held that the Attorney General was competent to sue for a permanent injunction to restrain the defendants from using their premises as a restaurant without a license from the Pesurohjaya.
Attorney General as Member of Pardons Board The Attorney General is also a member of the Pardons Boards of each State and the Federal Territories of Kuala Lumpur and Labuan. Before tendering their advice to the Yang di-Pertuan Agong, or the Ruler or the Yang di-Pertua Negeri, as the case may be, the Pardons Board shall consider any written opinion which the Attorney General may have delivered thereon
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