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The Attorney General of Malaysia - Coggle Diagram
The Attorney General of Malaysia
The Appointment of the AG
Appointed by the YDPA on the advice of Prime Minister
Qualifications - as a Federal Court judge:
Art 123: A citizen of Malaysia and for 10 years preceding appointment he has been an advocate of those courts / any of them or a member of the judicial legal service of the Federation or of the legal service of a State
Clause 5 - (5) Subject to Clause (6):
The Attorney General shall hold office during the pleasure of the DYPA and may at any time resign his office, and unless he is a member of the Cabinet, shall receive such remuneration as the YDPA may determine
Powers and privileges of the AG
Art 145(3):
The AG 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
Art 145(3A):
The AG has the power to determine which court to institute / transfer any proceeding
Art 145(4):
In the performance of his duties the AG will the the
right of audience
in, and shall take precedence over any other person appearing before, any court / tribunal in the Federation
Art 145(5):
Subject to Clause (6), the AG will
hold office during the pleasure of the YDPA and may at any time resign his office unless he is a member of the Cabinet, shall receive such remuneration as the YDPA may determine
Removal of the AG
Art 145(6):
The person holding the office of the AG prior to coming into operation of this Article shall continue to hold office on terms and conditions not less favourable than those applicable to him immediately before such coming into operation and
shall not be removed on the like grounds and in the manner as a judge of the FC
AG as the Public Prosecutor S376 Criminal Procedural Code:
Public Prosecutor ("PP")
The AG shall be the PP and shall have the
control and direction
of all criminal prosecutions and proceedings under this Code
The Solicitor General shall have the powers of Deputy Public Prosecutor and shall act as PP in case of the absence / inability of AG
The PP may appoint fit and proper persons
To be Deputy Public Prosecutors who shall be under the general control and direction of the PP and may exercise all / any of the rights and powers in or exercisable by the PP
Provisions of the FC
Powers of the Public Prosecutor - Art 143 FC:
"The AG will have power, exercisable at his discretion, to institute, conduct / discontinue any proceedings for an offence except the Syariah court, a native court or a court martial"
Institute
Conduct
Discontinue
any criminal proceeding
After Dato yap Peng's case
Institute the action
Long bin Samat v PP (1974)
Facts:
Accused has been convicted before a Magistrate's Court for
voluntarily causing hurt
, an offence punishable under S324 of the Penal Code. In the trial it was found that the
hurt suffered
by victim was
grievous hurt.
The Magistrate ignored this and went on trial where he would be convicted per S324.
On appeal the the HC, it was contended that the victim's hurt was grievous and accused should've been tried under S326 - penalty of servitude for life / 10 years imprisonment. But that charge is beyond the jurisdiction of the magistrate.
Issue: Which section? S324 PC - simple hurt or S326 PC - grievous hurt by dangerous weapon
Held per FC: PP is given wide discretion over control and direction of all criminal proceedings and can decide to prefer for a charge for a less serious offence when there's evidence of a more serious offence that should've been tried at a higher court
Johnson Tan Han Seng & Ors v PP (1977)
Facts:
Person thought to be in unlawful possession of firearms can be charged under the
Arms Act (Act 21 of 1960), for which the maximum penalty is 7 years
, or under the Firearms (Increased Penalties) Act (Act 37) where the maximum penalty is 14 years, or under
S57ISA, where the penalty is death.
In this case, 4 criminal appeals all involving firearms were heard together. A, B & C were found in possession of firearms illegally.
Issue:
Can the AG discriminate these 3 individuals?:
Must A, B & C be charged within the same section?
Held:
The language of this provision is very wide, as it includes the word
"discretion"
which means liberty of deciding as one thinks fit. Thus Art 8 must be read subject to Art 145(3)
Per the AG in the FC: The AG has the power to discriminate between persons alleged to be in possession with firearms and to charge them differently. AG's are allowed to take account of public interest when deciding the charge. The AG is also in touch with police / investigating agencies to obtain information. If the AG didn't do his duty properly to the public, public can show their disproval and eventually vote him out as he is a party member as well.
PP v Dato Yap Peng (1987)
Facts:
Dato Yap Peng was charged on 19th December 1986 in the KL sessions court on 2 charges of CBT.
On the 29th December 1986, the DPP tendered a certificate issued by the PP under S418(A) CPC requiring the case to be removed from the HC.
Objections was taken on his behalf, to the transfer of the case from the Sessions Court against the constitutional validity of S418(A) CPC as it infringes Art121(1) and 5(1) FC
But per Art145(3) FC, the AG is not allowed to discontinue any proceedings. It doesn't allow Parliament to confer the PP to remove a case pending before a subordinate Court to the HC.
Provisions of the Criminal Procedure Code
S.377 of the Criminal Procedure Code:
Every criminal prosecution before any court and every inquiry before a magistrate shall, subject to the following sections be conducted by:
(a) by the PP, senior DPP, DPP or APP
(b) subject to the control and direction of the PP, by the following persons who are
authorised in writing by the PP:
1) an advocate
2) a police officer not below the rank of Inspector
3) an officer of any government department
4) an officer of any local authority
5) an officer of any statutory authority / body
6) any person employed / retained by any local authority or any statutory body
In a district where its impracticable + with unreasonable amount of delay / expense, prosecution / inquiries will be conducted by the PP or by a police officer below the rank of Inspector, by notification in the Gazette
S.378 of the Criminal Procedure Code:
No person shall appear on behalf of the Public Prosecutor on any criminal appeal other than the Public Prosecutor, a senior Deputy Public Prosecutor or a Deputy Public Prosecutor
S.380 of the Criminal Procedure Code:
Any private person may appear in person or by an advocate and prosecute for an offence against his own person / property in a non-seizable case in the Magistrates Court
Non-seizable: case where the police officer can ordinarily arrest with warrant according to the 3rd column of the 1st Schedule, e.g. voluntarily causing grievous hurt
Functions of the AG
Advice YDPA / Government / Minister Cabinet on legal matters (Art 145 (2) FC)
Chairman of Legal Profession Qualifying Board of Malaysian and the National Higher Education Council
He is also a member of the Judicial and Legal Service Commission, Pardons Board of States in the Federation and the Federal Territories