BAR - Attorney General, Chief Justice, and President of the Court of Appeal Must Step Down?

Press Release 

Attorney General, Chief Justice, and President of the Court of Appeal Must Step Down

Given the recent political developments that have occurred in our country, the time has come for the Attorney General, Chief Justice of the Federal Court of Malaysia (“Chief Justice”), and President of the Court of Appeal to step down.

With respect to the Attorney General, Article 145(5) of the Federal Constitution states that the Attorney General holds office “during the pleasure of the Yang di-Pertuan Agong”. This means that the Attorney General does not enjoy security of tenure, and his services can therefore be terminated at any time. References to the Yang di-Pertuan Agong with regard to the appointment of the Attorney General under Article 145(1) and his removal under Article 145(5) are to the role of His Majesty as a constitutional monarch, and are not personal to the Yang di-Pertuan Agong. The Yang di-Pertuan Agong must therefore act on the advice of the Prime Minister, as stated in Articles 40(1) and 40(1A) of the Federal Constitution.

The statement by Prime Minister Tun Dr Mahathir Mohamed (“the Prime Minister”) that Tan Sri Dato’ Sri Haji Mohamed Apandi Ali (“Tan Sri Apandi Ali”) has hidden evidence of wrongdoings, and that Tan Sri Apandi Ali has been told to go on leave, clearly indicates that Tan Sri Apandi Ali does not enjoy the confidence of the new Prime Minister. In light of this, Tan Sri Apandi Ali’s position as the Attorney General is no longer tenable, and he should thus tender his resignation immediately. If Tan Sri Apandi Ali refuses to resign, the Government of the day has the right to dismiss him under Article 145(5) of the Federal Constitution.

The statement issued by Tan Sri Apandi Ali that he would not resign as the Attorney General because he was appointed by the Yang di-Pertuan Agong is misconceived in law and flawed in logic.

The positions of the Chief Justice and the President of the Court of Appeal, while different, are equally untenable. Their appointments are the subject of a constitutional challenge — by the Malaysian Bar itself — because they continue to serve in those offices beyond the age limit of 66 years and 6 months as prescribed in the Federal Constitution. The Government that recommended their appointments and defended their appointments in court is no longer in power. 

Rather than face the ignominy of being referred to a tribunal under Article 125(3) of the Federal Constitution and suspended from office under Article 125(5), YAA Tun Md Raus Sharif and YAA Tan Sri Dato’ Seri Zulkefli Ahmad Makinudin should also immediately tender their resignations as the Chief Justice and the President of the Court of Appeal, respectively. 

We would hasten to add that there is no similarity between what is happening now and what transpired during the 1988 Judicial Crisis; the two situations are clearly different and distinguishable. 

The Malaysian Bar calls upon the three individuals concerned — namely Tan Sri Apandi Ali, YAA Tun Md Raus Sharif, and YAA Tan Sri Dato’ Seri Zulkefli Ahmad Makinudin — to respect the rule of law and not undermine or besmirch the institutions to which they belong, and the high offices that they hold.

George Varughese

President

Malaysian Bar

16 May 2018