KUALA LUMPUR – March 20, 2017: Several lawyers who talked to The Mole today said Attorney-General (AG) Tan Sri Mohamed Apandi Ali should not be worried over a motion passed two days ago by the Bar Council calling for his resignation.
They said the Bar has no say whatsoever in regard to either the appointment or the dismissal of the AG.
They also insisted that the removal of the AG can only be done if it is in compliance with the Constitution.
The Bar’s motion, according to them, was merely a “populist” move.
Apandi has been criticised by the Bar since October last year when he decided not to prosecute anyone related to the 1Malaysia Development Berhad (1MDB) controversy for now.
Lawyers Zaki Azmi of Hoe and Ahmad Zaki as well as Lukman Sheriff Alias of Zul Rafique and Partners told The Mole that it was constitutional for Apandi to make such a decision because it was within his discretion.
Zaki stressed that article 145 (3) of the Federal Constitution gives the AG power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for an offence, other than proceedings before a Syaria court, a native court or a court-martial.
“If we were to go by our codified laws, whenever the AG uses his ‘discretion’, this means that his decisions cannot be reviewed, modified or amended by anyone except the AG himself.
“I guess that is why the AG has been rather nonchalant with the Bar’s motion. He knows, all too well, that the law is on his side,” said Zaki.
The same argument was also contended by Lukman who suspected that the Bar was probably trying for an unprecedented judicial review on the AG, which will be a “long shot.”
“Judicial review is conducted by the courts and not the Bar. The court has the determinant say on this issue not the Bar,” he added.
The motion that was passed during the Bar’s 70th annual general meeting two days ago went through with little objection, with 740 lawyers present supporting it.
However, there are 16,535 lawyers in the country who are mostly members of the Bar, with the exception of some Sharia lawyers.
“This means that those who wanted to fire the AG are only 4.45 per cent, less than 5 per cent from the 16,000 Malaysian Bar members,” lawyer Mohd Khairul Azam Abdul Aziz pointed out on Facebook.
He added that according article 145 (1) of the constitution, Apandi was appointed as the AG by the Agong under the advise of the Prime Minister.
Khairul also deemed that according to article 145 (6), Apandi can only be removed as the AG “on the like grounds and in the like manner as a judge of the Federal Court.”
And according to article 125 (3) that deals with tenure of office and remuneration of Federal Court judges; a judge can only be removed if he or she has breached any provisions of the code of ethics or on the grounds of inability, from infirmity of body or mind or any other causes causing the judge’s inability to carry out his or her function.
“With this in mind, only the Prime Minister (Datuk Seri Najib Razak) has the capacity to advise the Agong to sack Tan Sri Apandi Ali as the AG.
“So the Bar’s resolution during the AGM was a stupid move because it is impossible for them to not know about these articles. Unless they wanted to play a perception game.
“Change the PM (Prime Minister) only then can you (Bar Council) change the AG or they can persuade the PM to fire the AG…that’s about the only way to do it,” he wrote.