In a Facebook post on 21st December 2024, Datuk Mohd Zaid bin Ibrahim (a former Minister in the Prime Minister’s Department for Legal Affairs and Judicial Reform) [“DZI”] had inter alia proposed that the Attorney General should be a Member of Parliament.[1]
DZI’s Facebook post is reproduced below:
DZI’s proposed model for improving accountability and the independence of the Attorney General’s Chambers and the Public Prosecutor’s Office is one which is valid and worthy of further discussion.[2]
DZI’s proposed model is not new, and has been proposed by other individuals such as Dato’ Sri Azalina binti Othman Said (the current Minister in the Prime Minister’s Department for Law and Institutional Reforms)[3] and GK Ganesan Kasinathan (an Advocate and Solicitor).[4]
However, in the same post, DZI was of the view that “there is no need to touch [read: amend] Article 145 of the [Federal] Constitution” for his proposed model.
Article 145 of the Federal Constitution contains the provisions that relate to the Attorney General, including the role and powers of the Attorney General.
With all due respect to DZI, his contention that there is no need to amend Article 145 of the Federal Constitution does not hold water particularly when considered within the context of his proposed model.
At the present moment, the Federal Constitution does not require for the Attorney General to be a Member of Parliament.
If the Attorney General has to be a Member of Parliament, as advocated for by DZI in his proposed model, Article 145 of the Federal Constitution has to be amended to explicitly require this.
For example, Article 145(1) of the Federal Constitution could be amended as follows:
“The Yang di-Pertuan Agong shall, on the advice of the Prime Minister, appoint a person who is a member of either House of Parliament and who is qualified to be a judge of the Federal Court to be the Attorney General for the Federation.” (my amendments in red)
If it is merely a convention, which by nature is not legally enforceable,[5] future Attorney Generals could nevertheless be appointed by the Yang di-Pertuan Agong on the advice of the Prime Minister without needing to be a Member of Parliament
[1] Mohd Zaid bin Ibrahim, The 1 MDB injustice. 21 December 2024. Facebook, https://www.facebook.com/share/18Fv2mbjte/. Accessed 2 January 2025.
[2] I have provided other models for the separation of the offices of the Attorney General and Public Prosecutor at Wu Kai-Ming, Joshua. “Separation of the Offices of the Attorney General and Public Prosecutor – Possible models from selected Commonwealth jurisdictions.” Current Law Journal, vol. [2024] CLJU(A) xcv, 2024.
[3] Lim, Ida. “Azalina: AG should answer questions in Parliament, time for lawmaker to hold the role.” Malay Mail, 21 July 2021, https://www.malaymail.com/news/malaysia/2021/07/21/azalina-ag-should-answer-questions-in-parliament-time-for-lawmaker-to-hold/1991495. Accessed 2 January 2025.
[4] Kasinathan, GK. “Reconsider status, role and appointment of Attorney General – Amend the Constitution!.” Malaysian Bar, 25 May 2018, https://www.malaysianbar.org.my/article/news/legal-and-general-news/members-opinions/reconsider-status-role-and-appointment-of-attorney-general-amend-the-constitution. Accessed 2 January 2025
[5] See e.g. Zainun Ali JCA’s discussion of ‘constitutional conventions’ in Dato’ Dr Zambry bin Abd Kadir v Dato’ Seri Ir Hj Mohammad Nizar bin Jamaluddin (Attorney General of Malaysia, intervener) [2009] 5 MLJ 464 (CA), at paras 303-306; see also Re: Resolution to amend the Constitution [1981] 1 SCR 753 (Supreme Court of Canada): “As has been pointed out by the majority, a fundamental difference between the legal, that is the statutory and common law rules of the constitution, and the conventional rules is that, while a breach of the legal rules, whether of statutory or common law nature, has a legal consequence in that it will be restrained by the courts, no such sanction exists for breach or non-observance of the conventional rules. The observance of constitutional conventions depends upon the acceptance of the obligation of conformance by the actors deemed to be bound thereby. When this consideration is insufficient to compel observance no court may enforce the convention by legal action. The sanction for non-observance of a convention is political in that disregard of a convention may lead to political defeat, to loss of office, or to other political consequences, but it will not engage the attention of the courts which are limited to matters of law alone.”
