PETALING JAYA: There should be no further delay in terminating the services of Attorney-General Tan Sri Mohamed Apandi Ali who has been forced to go on leave, says Lawyers for Liberty (LFL).
According to LFL advisor N. Surendran (pic), it has been expressly announced that Apandi does not enjoy the confidence of the new Prime Minister (PM), Tun Dr Mahathir Mohamad, and his reformist government.
"The AG can be removed or terminated whenever the PM advises the King to do so,” said the lawyer in a statement on Sunday.
This is because under Article 145(5) of the Constitution, the AG holds office at the pleasure of the Yang di-Pertuan Agong or King, he explained.
He added that this is reinforced by Article 132(2A) which states that a member of the judicial and legal service holds office at the pleasure of the King.
”In short, the AG's services can be terminated at any time by the King by virtue of Article 145(5), if the PM advises His Majesty to do so."
Surendran said there is no requirement for a tribunal to remove the AG, nor a need for an enquiry in order to terminate his services.
“Apandi has no legal recourse when his services are terminated; he must go. The best thing he can do now is to quit honourably, before he is ignobly forced out,” Surendran added.
As for the appointment of a new AG, Article 145(1) of the Constitution provides that the King shall do so 'on the advice of the Prime Minister.'
According to Surendran, this should be read with Article 40(1A), where the King is bound to act upon the advice of the PM or Cabinet.
“The King may act in his own discretion only in the limited circumstances stated in Article 40(2), such as the appointment of PM or dissolution of Parliament.
This Royal discretion does not include the appointment of an AG, which must be in accordance with the advice of the PM,” he said.
Thus, the termination of the current AG and the appointment of a replacement by the King must both be done upon the advice of the Prime Minister.
Constitutionally and legally, said Surendran, it is entirely up to the Prime Minister of the new administration elected by the people, to pick the appropriate person to be A-G.
“Any further delay in appointing a new A-G is bound to hold up or disrupt the important institutional and legal reforms now expected by the people, as well as the widely expected prosecutions in the massive 1MDB financial scandal.
“As things stand, Malaysia has no functioning A-G. This situation cannot be allowed to continue,” he cautioned.
It has been reported that all four parties – Amanah, Bersatu, DAP and PKR – in the new Pakatan Harapan government have agreed to top lawyer and constitutional expert Tommy Thomas to be the next A-G, to send the right signal to Malaysians and the world that the new government was serious about reforming the country's institutions.
However, it is understood that the Palace and other Malay rulers want Dr Mahathir to recommend a Malay-Muslim candidate to be the A-G.
Other lawyers have said there should be no obstacle to appoint Tommy Thomas as AG.
Bukit Gelugor MP and lawyer Ramkarpal Singh said he he did not feel there was an issue with appointing Thomas as the AG and should be appointed without further delay.
“He has got the experience and is well versed in constitutional law, which is essential to the job," Ramkarpal told the Star.
“I hope he is selected immediately as a country needs an AG to function,” he said.
Other constitutional lawyers have also been reported to say that the King must appoint the new AG according to the PM's advice.
"If he doesn't, for ill health or other reasons, then the Deputy Yang di-Pertuan Agong (Sultan Nazrin Muizzuddin Shah) can step in," constitutional lawyer and former law expert at Universiti Malaya Dr Gurdial Singh Nijar told The Malaysian Insight (TMI).
Another constitutional lawyer Syahredzan Johan, told TMI that the King and the Council of Rulers have no constitutional basis to interfere in the appointment.
"The King does not have the discretion to choose the attorney-general. He must do so at the advice of the prime minister.
"The Council of Rulers have an even lesser role. The King does not need to consult the Council of Rulers," said Syahredzan.
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