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INTERNATIONAL MALAYSIA LAW CONFERENCE 2012

ASIAN PERSPECTIVES, GLOBAL VIEWPOINTS
28 SEPTEMBER 2012

PLENARY SESSION :
THE INDEPENDENCE OF THE ATTORNEY GENERAL AND THE PUBLIC
INTEREST

YBHG TAN SRI ABDUL GANI PATAIL

ATTORNEY GENERAL OF MALAYSIA
SPEAKING POINTS

Mr. Steven Thiruneelakandan, Treasurer of the Malaysian Bar, our learned Moderator
for this Plenary Session,

Esteemed panelists,
Mr. Kevin P Zervos, Director of Public Prosecutions, Department of Justice
of Hong Kong, and
Mr. Bala Reddy, Chief Prosecutor (Projects), Attorney Generals Chambers
of Singapore,

Ladies and gentlemen.

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A.

OVERVIEW OF PRESENTATION

1.

In considering this plenary topic, The Independence of the Attorney General and
the Public Interest, it may be useful to focus on the following points.
Firstly, what constitutes public interest;
Secondly, what aspects of public interest come specifically within the
purview of the office of the Attorney General; and

Finally, the impact, if any, of the independence of the Attorney General on

these aspects of public interest.

B.

2.

PUBLIC INTEREST
Blacks Law Dictionary (8th Edition) defines public interest in a two-fold manner.
Firstly, it is said to mean the general welfare of the public that warrants
recognition and protection. Secondly, it is defined to mean something in which
the public as a whole has a stake; especially an interest that justifies
governmental regulation. However, as Chief Justice Campbell held in R v
Bedfordshire1, a matter of public or general interest does not mean that which is
interesting as gratifying curiosity or a love of information or amusement; but that
in which a class of the community have a pecuniary interest, or some interest by
which their legal rights or liabilities are affected.

24 L.J.Q.B. 84.

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3.

In considering this issue in Ragunathan v PR2, Raja Azlan Shah, Acting Lord
President (as he then was) said What is public interest must surely depend
on the facts and circumstances of each case. the proper test would be
whether it directly and substantially affects the rights of the parties and if so
whether it is an open question in the sense that it is not finally settled by this
court or the Privy Council or is not free from difficulty or calls for discussion of
alternative views. If the question is settled by the highest court or the general
principles in determining the question are well settled and it is a mere question of
applying those principles to the facts of the case the question would not be a
question of law of public interest.

4.

More recently, Justice Faiza Tamby Chik in Kanawagi a/l Seperumaniam v Dato
Abdul Hamid bin Mohamad 3 defined public interest. Firstly, by reference to the
United States case of Goein v Board of Education of School District of Fremount,
Dodge County4, His Lordship defined public interest as that interest shared
by all citizens in general and by the community at large concerning pecuniary or
legal liabilities.

His Lordship then cited for comparison the House of Lords

definition in Gouriet v Union of Post Office Workers5 that The decisions to be

made as to public interest are of the type to attract political criticisms and
controversy .

[1982] 1 MLJ 139 at p141-142.

[2004] 5 MLJ 495.
4
343 NW Zd 718, Neb 158.
5
[1978] AC 435 at p482.
3

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5.

As the court in Beaulane Properties Ltd v Palmer6 stated, the notion of public
interest is necessarily extensive. However, the expression is coloured by the
context in which it finds itself. Thus in the context of property law, public interest
may involve considerations of political, economic and social issues. However in
another field, different considerations would apply.

6.

In the context of criminal prosecutions, it is also pertinent to note section 95 of

the Penal Code [Act 574] which provides that not all acts which cause or result
in harm are offences if that harm is so slight that no person of ordinary sense
and temper would complain of such harm. Hence there would be no public
expectation of such cases being brought to court in such cases: R (on the
application of Rusbridger and another) v Attorney General7.

7.

In the Canadian case of R v Viccars & Associates8, the court recognized that the
phrase in the public interest is not uncommon in legislative drafting but that it
had been the subject of several challenges for being unconstitutionally vague.
However, the constitutionality of provisions using that phrase have been upheld
with courts finding that the determination of whether this term is capable of
bearing a sufficiently clear meaning depends on the specific circumstances in
which it is used.

[2005] 3 EGLR 85.

[2003] 3 WLR 232; [2003] UKHL 38.
8
[2000] A.J. No. 234.
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8.

In the interest of providing interpretative guidance on the phrase public interest,

the courts in Canada and Australia9 have been developing guidelines. Among the
criteria advanced are the following:
public interest cannot and should not be equated with public concern;
the protection of the public is to be paramount;

the need to maintain public confidence in the administration of justice;

the court should be cautious about using the doctrine of vagueness to

impede governmental action in furtherance of valid social objectives;
regard should be had to the nature and purpose of the statute as a
whole;
whether the phrase has been given form by prior judicial interpretation
of the act;
societal values may be relevant; and
evaluation of the term public interest should also include references to
related legislative provisions, both within the governing act as well as in
other enactments.

Johnson v B.C. (Securities Commission) (1999) 67 B.C.L.R. 145; R v Geller [2003] O.J. No. 357 and Hall v New South Wales State
Parole Authority [2006] NSWSC 1411.

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9.

In view of the above, if there were to be but a single guide, perhaps the advice
of Lord Justice Morris in Ellis v Home Office10 should light the way. In that case,
which involved a determination whether crown or public immunity privilege
should be accorded to the government in relation to the disclosure of
documents, His Lordship opined that when considering the public interest
and what might be injurious to it, it is to be remembered that one feature and
one facet of the public interest is that justice should always be done and should
be seen to be done.

C.

ATTORNEY GENERAL AS GUARDIAN OF PUBLIC INTEREST

10.

The role and function of the Attorney General as guardian of the public interest is
concisely summarized by the Honourable Tan Sri Dato Haji Mohamed Salleh bin
Abas (as he then was) in his Selected Articles & Speeches on Constitution, Law
& Judiciary - Functions, Responsibilites and Problems of the Attorney Generals
Chambers, a collection of papers and speeches he wrote during his tenure as
Solicitor General of Malaysia. At pg 167 it is stated as follows:
The office of Attorney General is constituted under Article 145 of the
Federal Constitution which makes the Attorney General the sole legal
adviser to the Yang di-Pertuan Agong, the Cabinet, Ministries and
Government Departments. It also gives the Attorney General complete
discretion to institute, conduct or discontinue any proceedings for a criminal
offence other than proceedings before a Syariah Court. In addition to these
functions, the Attorney General has the power to safeguard public interest,
especially in the field of charitable trusts, public nuisance and public
mischief (see the Government Proceedings Act 1956 [Act 359].

10

With

[1953]2 Q.B. 135.

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regard to proceedings in respect of charitable trusts, the Attorney General

has either to be a party to that proceeding or his consent is required for the
institution of the proceedings. With regard to criminal prosecutions and
matters, the Criminal Procedure Code [Act 593] makes the Attorney
General the Public Prosecutor who alone is vested with the control and
direction of all criminal prosecutions and proceedings.
[Words in italics updated]

11.

Thus it is emphasized that the Attorney Generals duty and power to act in the
public interest is as provided by the law and it is exercised in accordance with the
law. A few general illustrations will suffice.

12.

Firstly in relation to the Attorney Generals prosecutorial discretion vested by

Article 145(3) of the Federal Constitution. It was emphasized by the Federal
Court in Johnson Tan Hang Seng11 v PP that although the discretion is
constitutionally wide, the Attorney General is permitted to take into account the
public interest when deciding whether or not to prosecute as well as the
appropriate charges to be preferred against an accused. In support of this
contention, His Lordship Suffian LP referred to the decision of Viscount Dilhorne
(a former Attorney General himself) in the House of Lords decision in Smedleys
Ltd v Breed12 where his Lordship stated as follows:
In 1951 the question was raised whether it was not a basic principle of the
rule of law that the operation of the law is automatic where an offence is
known or suspected. The then Attorney General, Sir Hartley Shaw Cross,
said:

11
12

[1977] 2 MLJ 66 at 71.

[1974] 2 All ER 21 at 32-33.

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It has never been the rule of this country I hope it never will be
that criminal offences must automatically be the subject of
prosecution.

He pointed out that the Attorney-General and the Director of Public

Prosecutions only intervene to direct a prosecution when they consider it in
the public interest to do so and he cited a statement made by Lord Simon
in 1925 when he said:
there is no greater nonsense talked about the Attorney-Generals
duty than the suggestion that in all cases the Attorney-General ought
to decide to prosecute merely because he thinks there is what
lawyers call a case. It is not true and no one who has held the office
of Attorney-General supposes it is.
[Emphasis added]

13.

Hence, aside from ascertaining whether the act constitutes an offence in law and
the sufficiency of the evidence thereof, the Public Prosecutor also considers
whether public interest demands that a prosecution be instituted. In this regard it
is recognized that practical realities may outweigh the public interest factor. One
instance would be if the prosecution would be compromised by insufficient
credible evidence, lack of cooperative witnesses, staleness of the offence and
other difficulties. Another instance would be where the institution of a prosecution
could compromise national security or public order.

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14.

It is further emphasized that there is no one size fits all rule of thumb in the
exercise of the Attorney Generals duty to protect public interest. In some cases
public interest may demand a call to action while in others restraint should be
the order of the day. In either case, the exercise of the Attorney Generals
discretion and judgement should be judicious. This discretion is further
circumscribed by judicial decisions.

15.

For example, in the context of appeals or referrals of questions of law to the apex
court, the Attorney General needs to be clear on his motivations as well as
whether it satisfies the public interest criteria. As Tun Suffian, Acting Chief
Justice (as he then was) cautioned in the Federal Court decision of Tan Yin Yen
v PP13, questions of law which may be referred to us under section 66 should
not be questions that are of personal interest only to the accused or the public
prosecutor, but should be questions that are of public interest .

16.

In the context of judicial review, the High Court per Justice Faiza Tamby Chik in
Kanawagis case14

explained the reasons cause papers are required to be

served on the Attorney General as follows:

The rule is based on the principle that judicial review is a principal tool
of public law applicable to public bodies in claims brought before a
specialized administrative court. As public bodies impliedly attract public
interest and the guardian of public interest is the AG, this provision makes
the AG a nominal party in all judicial review applications. The intention of
this rule was to ensure that the AG vets all judicial review applications in
order to ascertain if his participation is warranted. Whether the AG elects to
13
14

[1973] 2 MLJ 143.

Supra.

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appear or not is solely his discretion. And if the AG does elect to appear by
himself or his representative, then the court is bound to give a hearing and
thereafter decide the matter. The court has no jurisdiction not to hear the
AG. However if the AG appears, it is for the AG to show the public element
involved in the application and to either support or oppose the application.
However, if there is no public element involved, there is no need for the AG
to appear and it would be implied that the non-appearance of the AG would
mean that the application did not touch issues of public interest..
[Emphasis added]

17.

In the case of public nuisance, the Attorney General acts in the public interest to
stop or prevent the public nuisance and obtain appropriate relief. Here section 8
of the Government Proceedings Act 1956 [Act 359] provides that the Attorney
General or persons who have obtained the written consent of the Attorney
General may institute a suit, though no special damage has been caused, for a
declaration and injunction or for such other relief as may be appropriate to the
circumstances of the case.

18.

In the case of any alleged breach of any express or constructive trust for public,
religious, social or charitable purposes, the Attorney General acts in the public
interest to protect the trust property.

Here section 9 of the Government

Proceedings Act 1956 provides that the Attorney General or persons who have
obtained the written consent of the Attorney General may institute a suit or be
joined as a party to an existing suit on behalf of the Government.

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19.

Last but not least let us take the issue of freedom of information and the
obligation to disclose information in public interest. In some cases, the interest
of justice may justify the disclosure of information. In other cases, disclosure
would clearly be contrary to public interest such as where disclosure may be
injurious to national defence or to good diplomatic relations. Other apt examples
would include the need to protect personal data and other confidential
information. Further, the practice of keeping a class of documents or information
secret may be necessary for the proper functioning of the public service.

20.

The onerous duty of acting as guardian of the public interest is well recognized
by the House of Lords in Duncan v Cammell Laird & Co15 and many subsequent
authorities. Regardless of the scenarios which may arise, determining the
appropriate action in the public interest inevitably requires a balancing act by
the relevant authorities, including the Attorney General.

D.

INDEPENDENCE OF ATTORNEY GENERAL

21.

As stated above, in Malaysia like in many other countries, the office of the
Attorney General is constituted in the Federal Constitution. The independence of
this office is thus constitutionally provided for, among others, through the
appointment and security of tenure mechanism.

22.

Article 145(1) of the Federal Constitution provides that only a person qualified to
be a judge of the Federal Court may be appointed as Attorney General by the
Yang di-Pertuan Agong. With reference to Article 123 of the Federal Constitution
this means a person who is a citizen and for ten years preceding his appointment

15

[1942] A.C. 624 at 642.

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he has been an advocate of the Federal Court, Court of Appeal and High Courts
or any of them or a member of the judicial and legal service of the Federation or
of the legal service of a State, or sometimes one and sometimes another. This
has been the position since Merdeka.

23.

Security of tenure is ensured under Article 145(5) of the Federal Constitution.

This clause provides that the Attorney General shall hold office during the
pleasure of the Yang di-Pertuan Agong and may at any time resign his office
and, unless he is a member of the Cabinet, shall receive such remuneration as
the Yang di-Pertuan Agong may determine.

24.

The Attorney Generals role as first law officer is further entrenched in Article
145(4) of the Federal Constitution. This clause provides that In the performance
of his duties the Attorney General shall have the right of audience in, and shall
take precedence over any other person appearing before, any court or tribunal in
the Federation.

25.

Further, in Malaysia, unless the Attorney General is a Cabinet Minister, he is not

part of the political establishment of the Executive branch of government. This
very importantly enables the Attorney General to remain apolitical.

26.

Malaysia has had both civil service and non-civil service Attorneys General. The
latter category is solely exemplified by the first Malaysian Attorney General, Tan
Sri Abdul Kadir bin Yusof. The Honourable Tan Sri Abdul Kadir bin Yusof served
as Attorney General from 11 October 1963 to 31 December 1977, first as a
member of the Judicial and Legal Service of Malaysia and subsequently, from
1973, as a Cabinet Minister who was Attorney General and Minister of Law.

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27.

The institutional framework aside, the independence of the office of the Attorney
General is jealously guarded. This is to ensure that the Attorney Generals
Chambers is able to carry out its constitutional and statutory functions without
fear or favour. This independence is also grounded by a strong adherence to the
Attorney Generals Chambers fundamental principles to uphold the rule of law
and the interests of justice. However maintaining independence through a strict
respect for the separation of powers and functions from that of the political
executive is not without challenges.

CONCLUSION
28.

As Ms Emmeline Pankhurst (British political activist and leader of the British

suffragette movement) stated in a speech in 1913, the grievances of those
who have got power, the influence of those who have got power commands a
great deal of attention; but the wrongs and the grievances of those people who
have no power at all are apt to be absolutely ignored. That is the history of
humanity right from the beginning.16 Hence here begins and lies the onerous
duty of the office of the Attorney General to uphold and defend public interest
to serve and protect those most in need. It is a challenge that the Attorney
Generals Chambers and I strive in all humility to meet with integrity as officers of
the law.

29. Allow me to conclude with the words of Sir Thomas More in Utopia that All laws
are promulgated to this end, that every man may know his duty; and, therefore,
the plainest and most obvious sense of the words is that which must be put upon
them.

Thank you.
16

Reproduced by Chris Abbott in his book, 21 Speeches That Shaped Our World at page 19.

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