Selected Commonwealth Jurisdictions with Fused Roles of the Attorney General and Public Prosecutor

Selected Commonwealth Jurisdictions with Fused Roles of the Attorney General and Public Prosecutor

In the following Commonwealth jurisdictions, the roles of the Attorney General and Public Prosecutor are fused.

The Attorney General is the principal legal advisor to the Government, as well as “chief criminal law enforcement officer”[1] “responsible for the prosecution of all criminal offences.”[2]

1. Brunei

Article 81(2) & (3) of The Constitution of Brunei Darussalam

“(2) The Attorney General shall advise on all legal matters connected with the affairs of Brunei Darussalam referred to him by His Majesty the Sultan and Yang Di-Pertuan or by the Government.

(3) The Attorney General shall have power exercisable at his discretion to institute, conduct or discontinue any proceedings for an offence other than …”[3] (Emphasis mine)

2. Malaysia

Article 145(2) & (3) of the Federal Constitution

“(2) It shall be the duty of the Attorney General to advise the Yang di-Pertuan Agong or the Cabinet or any Minister upon such legal matters, and to perform such other duties of a legal character, as may from time to time be referred or assigned to him by the Yang di-Pertuan Agong or the Cabinet, and to discharge the functions conferred on him by or under this Constitution or any other written law.

(3) The Attorney General 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.”[4] (Emphasis mine)

3. Singapore

Article 35(7) & (8) of the Constitution of the Republic of Singapore

“(7) It shall be the duty of the Attorney-General to advise the Government upon such legal matters and to perform such other duties of a legal character, as may from time to time be referred or assigned to him by the President or the Cabinet and to discharge the functions conferred on him by or under this Constitution or any other written law.

(8) The Attorney‑General shall have power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for any offence.”[5] (Emphasis mine)

4. Sri Lanka

Extract from the website of the Attorney General’s Department[6] of Sri Lanka:

Anomaly: Hong Kong

In Hong Kong, the Department of Justice is in charge of criminal prosecution.

Article 63 of the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China provides that:

“The Department of Justice of the Hong Kong Special Administrative Region shall control criminal prosecutions, free from any interference.”[7]

The Department of Justice is headed by Secretary of Justice,[8] and the latter is appointed by the Central People’s Government on recommendation and nomination of Chief Executive of Hong Kong Special Administrative Region.[9]

Hong Kong’s Prosecution Code 2013 notes that, “the Secretary for Justice is responsible for applying the criminal law, formulating prosecution policy, and superintending the Director of Public Prosecutions and prosecutors in the Prosecutions Division of the Department.”[10]

In terms of practical day-to-day prosecutions, the Director of Public Prosecutions “initiates and conducts the prosecution of cases on behalf of the Hong Kong Special Administrative Region”[11] and “exercise on behalf of the Secretary for Justice the discretion whether or not to bring criminal proceedings in the HKSAR.”[12]


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On Retabling The Motion to Extend Section 4(5) of SOSMA 2012

The Federal Government tabled a motion in Parliament to extend the application of Section 4(5) of the Security Offences (Special Measures) Act 2012 (“SOSMA 2012”) for yet another five years (“the Defeated Motion”).[1]

Section 4(5) of the SOSMA 2012 allows a “police officer of or above the rank of Superintendent of Police may extend the period of detention for a period of not more than twenty-eight days, for the purpose of investigation.”

As a safeguard against the detention without trial allowed in Section 4(5), Section 4(11) of the SOSMA 2012 was enacted. The latter provides the following:

“Subsection (5) shall be reviewed every five years and shall cease to have effect unless, upon the review, a resolution is passed by both Houses of Parliament to extend the period of operation of the provision.”

The Defeated Motion was introduced as the present period of operation of Section 4(5) of the SOSMA 2012 will be coming to an end on 30th July 2022.[2]

The Defeated Motion, however, was not passed as 86 MPs voted against it, as opposed to 85 MPs who voted in favour of it.[3]

The Home Minister recently announced that the Federal Government is looking to re-table the SOSMA motion.[4]

Questions have arisen whether the Federal Government can do so, especially in the present Parliamentary session when the Defeated Motion was not passed.

Mr. Andrew Khoo, the co-chairperson of the Bar Council’s Constitutional Law Committee, has provided his views on the matter.[5]

He very aptly referenced Standing Order 36(3) of the Standing Orders of the Dewan Rakyat[6] (“Standing Orders”) which states that:

“It shall be out of order to attempt to reconsider any specific question upon which the House has come to a conclusion during the current session except upon a substantive motion for rescission.”

In essence, this would mean that the Federal Government cannot re-table the Defeated Motion until the Dewan Rakyat sits post-15th General Election.[7]

After all, the Dewan Rakyat has come to a conclusion during the current session about the contents of the Defeated Motion.

One possible way for the Federal Government to re-table the Defeated Motion during the current session would be to suspend the application of Standing Order 36(3).

Suspending Standing Order 36(3)

Based on Standing Orders 26(1)(m) and 90(1), it can be inferred that a motion can be moved to suspend any of the Standing Orders.

Order 26(1)(m) of the Standing Orders provides that:

“Unless Standing Orders otherwise provide, notice shall be given of any motion which it is proposed to move with the exception of the following:

(m) a motion to suspend any Standing Order moved under Standing Order 90 when the consent of Tuan Yang di-Pertua has been expressed.” (Emphasis mine)

Meanwhile, Order 90(1) of the Standing Orders states:

“Except with the consent of Tuan Yang di-Pertua, the House shall not proceed upon any Bill, amendment, motion or petition which, in the opinion of Tuan Yang di-Pertua, would suspend the Standing Orders of the House or any of them.” (Emphasis mine)

During the next ordinary Dewan Rakyat sitting, scheduled to be from 18th July 2022 to 4th August 2022,[8] the Federal Government could introduce a motion to suspend Standing Order 36(3) [“Suspension Motion”] and fast track voting on the Suspension Motion.

After the Suspension Motion is passed, the Defeated Motion can then be re-tabled and voted upon.

If the Federal Government opts to go down this route, a special sitting of the Dewan Negara has to be called as the Dewan Negara is only scheduled to sit from 8th August 2022 to 16th August 2022[9] and the Defeated Motion would have to be passed by both the Dewan Rakyat and the Dewan Negara before 30th July 2022.

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5 Things About Estate Claims for Death In Custody Cases

1. Barred from claiming for exemplary damages

Section 8(2)(a) of the Civil Law Act 1956 provides the following:

“(2) Where a cause of action survives as aforesaid for the benefit of the estate of a deceased person, the damages recoverable for the benefit of the estate of that person:

(a) shall not include any exemplary damages, any damages for bereavement made under subsection 7(3a), any damages for loss of expectation of life and any damages for loss of earnings in respect of any period after that person’s death;” (Emphasis mine)

In Ketua Polis Negara & Ors v Nurasmira Maulat bt Jaafar & Ors (minors bringing the action through their legal mother and next friend Abra bt Sahul Hamid) and other appeals [2018] 3 MLJ 184, the majority of the Federal Court held that Section 8(2) of the Civil Law Act 1956 which bars the awarding of exemplary damages in an estate claim is applicable where the death of the deceased is as a result of a breach of the deceased’s constitutional right to life.[1]

The decision in Nurasmira (supra) on Section 8(2) of the Civil Law Act 1956 was subsequently affirmed by the Federal Court in Koperal Zainal bin Mohd Ali & Ors v Selvi a/p Narayan (joint administrator and dependant of Chandran a/l Perumal, deceased) & Anor [2021] 3 MLJ 365 (“Selvi Narayan”).[2]

2. Can be awarded aggravated damages

In Selvi Narayan, although the Federal Court was of the view that the estate was barred from claiming exemplary damages, the Federal Court went on to decide that the estate could be awarded aggravated damages instead:

“… punishment can and ought to be meted out under aggravated damages, which the respondents had also specifically prayed for in their statement of claim. I say this because firstly, from its very nature, aggravated damages is to compensate the victim or as in this case, his estate for the unacceptable behaviour of the appellants.

the respondents in this case should be entitled to be compensated with aggravated damages which amount must reflect the sufferings of the deceased and at the same time the sheer abhorrence of the court against the negligent conduct of the appellants, even though the degree of its seriousness is not on the same footing as other reported cases where the deaths of the detainees were the result of physical abuse by their custodians.”[3] (Emphasis mine)

3. Could possibly claim for damages for pain and suffering

In Janagi a/p Nadarajah (joint estate administrator and dependent of Benedict a/l Thanilas, deceased) & Anor v Sjn Razali bin Budin & Ors [2021] MLJU 2023, the High Court awarded the Plaintiffs (who were the joint administrators of the Deceased’s estate) RM50,000.00 for the pain and suffering endured by the Deceased prior to his death.[4]

The High Court referred to damages for pain and suffering awarded in road accident cases as a guide.[5]

4. Must be initiated within 36 months from the act, neglect or default complained of

Section 2 of the Public Authorities Protection Act 1948:

“Where, after the coming into force of this Act, any suit, action, prosecution or other proceeding is commenced in the Federation against any person for any act done in pursuance or execution or intended execution of any written law or of any public duty or authority or in respect of any alleged neglect or default in the execution of any such written law, duty or authority the following provisions shall have effect:

(a) the suit, action, prosecution or proceeding shall not lie or be instituted unless it is commenced within thirty-six months next after the act, neglect or default complained of or, in the case of a continuance of injury or damage, within thirty-six months next after the ceasing thereof;” (Emphasis mine)

5. Can be brought together with a dependency claim

Section 8(5) of the Civil Law Act 1956 provides that:

The rights conferred by this section for the benefit of the estate of deceased persons shall be in addition to and not in derogation of any rights conferred on the dependants of deceased persons by section 7 and so much of this section as relates to causes of action against the estates of deceased persons shall apply in relation to causes of action under the said section as it applies in relation to other causes of action not expressly excepted from the operation of subsection (1).” [Emphasis mine]

This legal proposition was recognised by the High Court in Janagi a/p Nadarajah (joint estate administrator and dependent of Benedict a/l Thanilas, deceased) & Anor v Sjn Razali bin Budin & Ors [2021] MLJU 2023.[6]

Both claims were also brought together in Syed Mohamed Nur bin Ali (executor and dependant of Syed Mohd Azlan bin Syed Mohamed Nur, deceased) v Weddrin bin Mojingkin & Ors [2020] 9 MLJ 639.[7]

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Responding to the Perlis Mufti’s Contentions on Unilateral Child Conversions

Dato’ Arif Perkasa Dr. Mohd Asri bin Zainul Abidin, the Mufti of Perlis (“Perlis Mufti”), recently provided his comments on the unilateral conversion of Loh Siew Hong’s three children.[1]

With all due respect to the Perlis Mufti, many of his key contentions do not hold water.

The English version of the Federal Constitution is authoritative

The Perlis Mufti reportedly claimed that the Raja of Perlis Tuanku Syed Sirajuddin Syed Putra Jamalullail was instrumental in issuing an authoritative text of the Federal Constitution in the Malay language when the latter was Yang di-Pertuan Agong.

Consequently, this would invoke Article 160B of the Federal Constitution and render the Malay version of the Federal Constitution the authoritative text.

However, it is important to note that the Perlis Mufti’s proposition has not been judicially accepted.

Rather, the superior courts have recognised the English version of the Federal Constitution to be the authoritative text.

In Indira Gandhi a/p Mutho v Pengarah Jabatan Agama Islam Perak & Ors and other appeals [2018] 1 MLJ 545 (“Indira Gandhi”), the Federal Court had to decide whether the Malay version or English version of the Federal Constitution was authoritative.[2]

The Federal Court unanimously held that:

“… In the present appeals, despite the learned State Legal Adviser’s reliance on Article 160B, no evidence of the necessary prescription was adduced by either of the Respondents. In the circumstances, we will proceed on the basis that the English version to be authoritative.”[3] (Emphasis mine)

The English version of the Federal Constitution will remain the authoritative text until and unless a subsequent Federal Court departs from Indira Gandhi and decides otherwise.[4]

Any laws which are inconsistent with the Federal Constitution are void

The Perlis Mufti reportedly claims that unilateral child conversions are valid under Perlis law.

Even if that were the case, such provisions would be void if they are inconsistent with the Federal Constitution.

Article 4(1) of the Federal Constitution provides that:

“This Constitution is the supreme law of the Federation and any law passed after Merdeka Day which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void.” (Emphasis mine)

In Indira Gandhi, the Federal Court was of the view:

“… Since a literal construction of art 12(4) would give rise to consequences which the legislative could not possibly have intended, the Article should not be construed literally (Sukma Darmawan at p 247). A purposive reading of art 12(4) that promotes the welfare of the child and is consistent with good sense would require the consent of both parents (if both are living) for the conversion of a minor child.”[5] (Emphasis mine)

Accordingly, provisions in Perlis’ law which allow for unilateral child conversions would contravene Article 12(4) of the Federal Constitution and would thus be void.

Certificates for unilateral child conversions are void and must be set aside

Since provisions of Perlis’ law allowing for unilateral child conversions are void for being inconsistent with Article 12(4) of the Federal Constitution, certificates of conversions issued pursuant to those provisions must be set aside.

Support for this proposition can be found in Indira Gandhi, a case which concerned unilateral child conversions under Perak’s law.

The Federal Court in Indira Gandhi held the following:

“We also find that the certificates of conversion were issued without the consent of the Appellant thus contravening Article 12(4) of the Federal Constitution and sections 5 and 11 of the GIA. The certificates of conversion are void and must be set aside.”[6] (Emphasis mine)

Editor’s Note: This article also appeared on Malaysia Now

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5 Things About Counterclaims

1. Are cross claims

In Permodalan Plantations Sdn Bhd v Rachuta Sdn Bhd [1985] 1 MLJ 157 (“Permodalan Plantations”), Salleh Abbas LP opined the following:

“A counterclaim on the other hand is also a cross-claim which a defendant has against a plaintiff but in respect of which the defendant can bring a separate action against the plaintiff if he wishes to do so.”[1]

2. Are a separate and independent action

Salleh Abbas LP also held in Permodalan Plantations that:

“… to all intents and purposes a counterclaim is a separate and independent action by the defendant, which the law allows to be joined to the plaintiff’s action in order to avoid multiplicity or circuity of suits.”[2] (Emphasis mine)

Consequently, a counterclaim still stands even if a principle action is discontinued by the Plaintiff(s) or the principle action is dismissed by the Court.

This position was expressly taken by the Court of Appeal in Tai Choi Yu & Co, Advocates v Ting Sie Chung @ Ting Sieh Chung [2017] MLJU 846:

“The law must therefore be taken to be well settled that by Order 15 rule 2 of the Rules of Court 2012 and based on the above authorities, a counterclaim is treated as a separate and independent action which does not come to an end in consequence of the plaintiff’s decision in discontinuing the action or the dismissal of the plaintiff’s action by the court as with the present case.”[3] (Emphasis mine)

3. Must be sufficiently connected with or allied to the subject matter of the principle claim

Order 15 Rule 2(1) of the Rules of Court 2012 is broadly worded and would appear to allow for counterclaims not sufficiently connected with or allied to the subject matter of the principal claim:

“Subject to rule 5(2), a defendant in any action who alleges that he has any claim or is entitled to any relief or remedy against a plaintiff in the action in respect of any matter (whenever and however arising) may, instead of bringing a separate action, make a counterclaim in respect of that matter: and where he does so he shall add the counterclaim to his defence.” (Emphasis mine)

Notwithstanding that, the courts have taken the view that a counterclaim must be sufficiently connected with or allied to the subject matter of a principle claim.

In Alloy Consolidated Sdn Bhd & Anor v Anjari Properties Sdn Bhd & Anor [2009] 4 MLJ 833, Ahmad Maarop JCA (later PCA) held the following:

“… it is settled law that a counterclaim cannot be maintained unless it is shown that the relief claimed is sufficiently connected with or allied to the subject matter of the principle claim as to make it necessary in the interest of justice that it should be dealt with along with the claim. Thus a counterclaim for slander cannot be maintained in a claim for money lent (see Esso Standard Malaya Bhd v Southern Cross Airways (M) Bhd [1972] 1 MLJ 168 at p 170, per Raja Azlan Shah J as His Royal Highness then was)).”[4] (Emphasis mine)

A similar position was taken by the Court of Appeal in M/S L.M. Ong & Co and Others v Chia Kah Gek (Dissenting avail MLJU (09) 1092 & 1094) [2009] MLJU 1093:

“As a rule, counterclaim must be sufficiently connected with the claim. Material affinity with the subject matter of the claim must be present in the counterclaim for defamation cannot be maintained in an action for a claim for a declaration that the clause in the sale and purchase agreement providing for the retention of the sale proceeds by a stakeholder was of no effect.

In this respect, it is pertinent to quote with our full agreement on what Raja Azlan Shah, J (as His Majesty then was) said in Esso Standard Malaysia v Southern Cross Airways (Malaysia) Bhd [1972] 1 MLJ 168 at p 170 …”[5] (Emphasis mine)

4. Defendant cannot be forced to bring a counterclaim

After considering the use of the word ‘may’ in Order 15 Rule 2(1) of the Rules of Court 2012, the Federal Court in Jaya Sudhir a/l Jayaram v Nautical Supreme Sdn Bhd [2019] 2 MLJ 816 held the following:

“Thus, a defendant cannot be forced to bring a counterclaim when sued for the law gives him an election.”[6]

5. Cannot be included when the principal action has been disposed of

In Ambank (M) Berhad v New Century Concepts Sdn. Bhd & Anor [2011] MLJU 741, Datuk Dr Haji Hamid Sultan bin Abu Backer J (later JCA) opined that:

“[4] … (i) The rules of the court do not strictly permit an amendment to include a counterclaim when the main suit has been disposed off. Order 15 rule 2(1) which the defendants purportedly relies on limits a counterclaim to bring in the plaintiffs action. If the plaintiffs action has been disposed off I do not think Order 15 rule 2 (1) will be of assistance to the defendants.”[7]

Additionally, His Lordship referred to the Salybia [1910] P 25 where Sir John Bingham (as he then was) was of the view that:

“I am of the opinion that no counterclaim was ever set up. A counterclaim can only be born of a living action. The letter of November 4 was written after the action had been wholly discontinued and when ‘the case’ had gone. If Bildt v Foy (1) be good law, I think it is distinguishable on the ground that there the counterclaim was mentioned while the action was still alive, whereas here it was not mentioned until after the action was dead. I doubt, moreover, whether a mere casual reference to an intention to prefer a counter claim can be described as setting up a counter claim at all. I think the registrar was right in refusing the application” (Emphasis mine)

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