Umno and PAS’s youth wings reportedly said they will lodge police reports nationwide against the Attorney-General (AG) over a suggestion to defer the house arrest of PM6 pending a review of the conditional pardon and the High Court’s Order of Discharge.
The Umno Youth chief said the move was necessary to allow an investigation into allegations that the AG had abused his powers.
Procedurally, the police will open files and investigate the allegations.
When police complete an investigation involving a public official or any individual, the investigation paper (IP) will be submitted to the AG Chambers (AGC) for review, and the Public Prosecutor (PP) decides whether to institute, conduct, or discontinue any proceedings for an offense.
Until the Bill to separate the AG into the AG and PP is passed and gazetted, the AG is also the PP at present.
Article 145(3) of the Federal Constitution grants the AG sole and exclusive discretion to institute, conduct, or discontinue any proceedings for an offense.
If the police complete their investigation and find evidence of wrongdoing, they must submit the investigation papers back to the AGC.
Legally, the AG would be the one deciding whether or not to prosecute himself.
Who head’s the AG Chambers?
The AG himself, the subject of the allegation.
And he is also the PP.
There are calls made for the AG to take a leave of absence so that he can be investigated.
What is the law on the AG being asked to go on leave of absence?
In Malaysia, there is no specific statutory provision or codified law that explicitly governs an AG being asked to go on a "leave of absence."
Putting an AG on leave or suspending him relies on the executive powers of the Prime Minister and the constitutional doctrine of "holding office at the pleasure of the Yang di-Pertuan Agong (YDPA)."
Under Article 145(5) of the Federal Constitution, the AG holds office during the pleasure of the YDPA.
Because the YDPA acts on the advice of the Prime Minister or the Cabinet (Article 40(1)), the Prime Minister holds the de facto political authority to direct the AG to step aside or to initiate their termination.
The primary legal and political precedent for forcing an AG on leave occurred in May 2018. The then PM7 ordered the then-AG, to take a leave of absence pending an investigation into his conduct regarding the 1MDB scandal.
On 14 May 2018, PM7 instructed the then AG to take 30 days of unrecorded leave while the 1MDB investigations commenced.
Before his 30-day leave window concluded, the federal government moved to replace him. On 4 June 2018, the then YDPA consented to the government's decision to terminate his services as Attorney General and approved the appointment of the new AG.
The then former AG later filed a RM2.23 million lawsuit against PM7 and the Malaysian government, claiming his dismissal was unlawful and unconstitutional and the lawsuit was eventually settled out of court in April 2022 under confidential terms.
Be that as it may, assuming that the AG adhered to the calls by those who asked him to go on leave and voluntarily do so, the legal continuity of the AGC is preserved through the Federal Constitution and the Interpretation Acts.
The Solicitor General automatically steps in to exercise the duties, prosecutorial powers, and functions of the AG during their absence.
This ensures that criminal prosecutions and government legal advice proceed without interruption.
Because the AG holds office at the pleasure of the YDPA on the advice of the Prime Minister (Article 145(5)), a voluntary leave arrangement, if it is ever contemplated by the AG, is ultimately a matter coordinated between the AG and the executive branch.
Would PMX do so and listen to the voices of those from UMNO and PAS?
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