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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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 The Right to Property

1. Guaranteed under the Federal Constitution

Article 13(1) of the Federal Constitution provides the following:

“No person shall be deprived of property save in accordance with law.”

In Superintendent of Land and Survey Department Kuching-Divisional Office & Anor v Ratnawati bt Hasbi Mohamad Suleiman [2020] 2 MLJ 553, the Federal Court affirmed that:

“… no one, not even this court in this regard can dispute that right to property is guaranteed by and firmly entrenched in the Federal Constitution.”[1]

The Federal Court in Bungsar Hill Holdings Sdn Bhd v Damansara Realty Bhd [2019] MLJU 222 shared a similar view when it held:

“A person’s right to property is protected and entrenched in Article 13 of the Federal Constitution …”[2]

2. Is not an absolute right

A person can be deprived of his/her property in accordance with law [see Article 13(1) of the Federal Constitution]

Zainun Ali FCJ in the seminal case of Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat and another case [2017] 3 MLJ 561 (“Semenyih Jaya”) observed that:

“[The right to acquire, hold and enjoy property] is not an absolute right since ownership of property is subject to what is provided for in the Federal Constitution.”[3]

3. Property can be compulsorily acquired/used

Implied from the wording of Article 13(2) of the Federal Constitution which provides:

“No law shall provide for the compulsory acquisition or use of property without adequate compensation.”

The Federal Court in Semenyih Jaya also pointed out the following:

“One’s property can be acquired by the state.”[4]

The Land Acquisition Act 1960 is an Act of Parliament which allows the state authority to compulsorily acquire property.

4. Can only be taken away if it is the clear effect of a statute

The Federal Court in Tenaga Nasional Bhd v Bukit Lenang Development Sdn Bhd [2019] 1 MLJ 1 relied on the UK House of Lords decision in R v Secretary of State for the Home Department, ex parte Simms and another [1999] 3 All ER 400; [2000] 2 AC 115 and held:

“A person cannot have his right to property taken away unless that is the clear effect of a statute.”[5]

5. Statutes which deprive a person of the right must be strictly interpreted in favour of the person

In Ee Chong Pang & Ors v The Land Administrator of the District of Alor Gajah & Anor [2013] 2 MLJ 16, the Federal Court opined that:

“The Land Acquisition Act is a legislation that empowers a state authority to deprive a person of his property. As such, we are of the view that the provisions of the Act must be strictly interpreted in favour of the person who is to be deprived of his property so as to give meaning to the constitutional protection of a person’s right to his property (see Ismail bin Bakar & Ors v Director of Lands and Mines, Kedah Darul Aman [2011] 5 MLJ 197; [2010] 9 CLJ 810).”[6]

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State Elections In Light Of The Emergency Ordinances

With the Malacca State Legislative Assembly having been dissolved, snap polls will be held in the state.[1]

A question has arisen whether state elections can be conducted during the period the emergency ordinances remain in force (“the Question”).

The Question is a valid one as the Emergency (Essential Powers) Ordinance 2021 contains provisions relevant to State Legislative Assemblies.[2]

Since the emergency ordinances were not properly revoked,[3] the emergency ordinances have effect for six months after the Proclamation of Emergency ceases to be in force.

Article 150(7) of the Federal Constitution states:

At the expiration of a period of six months beginning with the date on which a Proclamation of Emergency ceases to be in force, any ordinance promulgated in pursuance of the Proclamation and, to the extent that it could not have been validly made but for this Article, any law made while the Proclamation was in force, shall cease to have effect, except as to things done or omitted to be done before the expiration of that period.” (Emphasis mine)

The Proclamation of Emergency only ceased to be in force on 2nd August 2021,[4] hence the emergency ordinances promulgated pursuant to the Proclamation will remain in force until 6th February 2022.

Section 13 of the Emergency (Essential Powers) Ordinance 2021 provides the following:

For so long as the emergency is in force

(a) the provision relating to an election for the election to a State Legislative Assembly in the Eighth Schedule to the Federal Constitution, Constitution of any State and any State Law shall have no effect; and

(b) an election for the election to the State Legislative Assembly shall be held on a date as the Yang di-Pertuan Agong thinks appropriate after consultation with the respective Ruler or the Yang di-Pertua Negeri.” (Emphasis mine)

Section 13 of the Emergency (Essential Powers) Ordinance 2021 is clearly contingent on the emergency still being in force.

Since the emergency ceased to be in force with effect from 2nd August 2021, the answer to the Question should be in the affirmative notwithstanding the fact the Emergency (Essential Powers) Ordinance 2021 continues to have effect.

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A Deputy Speaker from the Opposition?

Two weeks ago, Dato’ Sri Azalina Dato’ Othman Said, the former Deputy Speaker of the House of Representatives (Dewan Rakyat),[1] mooted the idea that a Member of Parliament from the Federal Opposition should be elected as one of the Deputy Speakers of the Dewan Rakyat (“The Proposal”).[2]

Unfortunately The Proposal, a very novel one in Malaysia’s history and in the context of Malaysian politics, did not receive much consideration by politicians across the political divide.

The Proposal is worthy of further discussion as there is no prohibition against it, it would promote check and balance, and it has international precedent.

No prohibition

There is no prohibition against The Proposal in the Federal Constitution and Standing Orders of the Dewan Rakyat.

The Federal Constitution merely requires the Deputy Speaker to be a Member of the Dewan Rakyat.[3]

That being the case, theoretically, a Member of the Dewan Rakyat from the Federal Opposition can be elected as one of the two Deputy Speakers.

Promote check & balance

The Deputy Speaker presides over proceedings in the Dewan Rakyat, in the absence of the Speaker.[4]

When doing so, the Deputy Speaker is vested with all  of the powers of the Speaker.[5]

In the past, there have been claims that the Speakers (at different time periods) were biased against Members of Parliament from the Federal Opposition.[6]

A Deputy Speaker from the Federal Opposition could negate or reduce claims of bias, and would act as a check and balance against the Speaker (who more often than not leans in favour of the Federal Government who elected him/her).

Where motions of no-confidence are involved, for example, the Deputy Speaker from the opposition could preside over the tabling, debate, and voting of the motion so as to minimise any apparent (or appearance of) conflict of interest.

International precedent

The Proposal has happened in other countries in the past, mutatis mutandis.

There have been instances of elected representatives from the opposition being elected as Deputy Speakers. Examples include:

i. Ishkhan Saghatelian, Armenia, 2021;[7]

ii. Andrius Mazuronis, Lithuania, 2020;[8]

iii. Peter Slipper, Australia, 2010;[9] and

iv. Michel Bissonnet, Quebec, 1989.[10]

In India and Lithuania, there is arguably a constitutional convention that the Deputy Speaker of the Lok Sabha (in India’s case)[11] and two of the maximum seven Deputy Speakers of the Seimas (in Lithuania’s case)[12] would be elected from the opposition.

Besides that, there is also precedent for an opposition Member of Parliament being elected as Speaker:

i. Alban Sumana Kingsford Bagbin, Ghana, 2021;[13] and

ii. Betty Boothroyd, United Kingdom, 1992.[14]

All of the above goes to show that The Proposal deserves serious consideration. It is a shame that The Proposal, a constructive and yet unconventional parliamentary reform, disappeared as quickly as it had arrived on mainstream media.

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