The Attorney General of Malaysia: The Office and Powers Defined by Article 145

Most public offices are defined by a statute that Parliament can rewrite. The office of Attorney General for the Federation is not one of them. It is written into the Federal Constitution itself, in a single article — Article 145 — that sets out who fills the office, what it must do, and the one power the Constitution places in the holder’s own discretion.

Reading that article closely is the surest way to understand the office, because almost everything said about the Attorney General in Malaysia traces back to its six clauses.

At a glance

Title	Attorney General for the Federation (Peguam Negara)
Constitutional basis	Article 145, Federal Constitution
Appointed by	Yang di-Pertuan Agong, on the advice of the Prime Minister (Art. 145(1))
Qualification	A person qualified to be a judge of the Federal Court (Art. 145(1))
Core duty	To advise the Yang di-Pertuan Agong, the Cabinet and Ministers on legal matters (Art. 145(2))
Signature power	To institute, conduct or discontinue proceedings for an offence, at his discretion (Art. 145(3))
Also known as	The Public Prosecutor, when exercising the Clause (3) power
Right of audience	In, and taking precedence before, any court or tribunal in the Federation (Art. 145(4))
Tenure	Held during the pleasure of the Yang di-Pertuan Agong (Art. 145(5))

How the office is filled: Article 145(1)

Article 145(1) provides that the Yang di-Pertuan Agong shall, on the advice of the Prime Minister, appoint a person who is qualified to be a judge of the Federal Court to be the Attorney General for the Federation.

Two textual points follow directly. First, the appointment runs on advice: the formal act is the Yang di-Pertuan Agong’s, and the advice is the Prime Minister’s. This mirrors the general pattern for functions exercised on advice under Article 40.

Second, the qualification is fixed by reference to the judiciary. To be eligible a person must satisfy the same conditions that qualify a person to be a judge of the Federal Court — which the Constitution defines elsewhere in terms of years of standing as an advocate of a superior court or as a member of the judicial and legal service. The office is therefore reserved to senior lawyers, though it is not itself a judicial post.

The advisory duty: Article 145(2)

Article 145(2) states the office’s standing duty. It is the duty of the Attorney General to advise the Yang di-Pertuan Agong, 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 the Constitution or any other written law.

In plain terms, this makes the Attorney General the principal legal adviser to the Government. The duty is framed as advice referred or assigned to the office — the Attorney General advises on the matters put to the office, and discharges the further legal functions that other laws confer.

The prosecution power: Article 145(3)

This is the clause that gives the office its distinctive character. Article 145(3) provides that 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.

Three verbs mark out the scope of the power:

• Institute — to begin a prosecution.
• Conduct — to carry it on.
• Discontinue — to bring it to an end.

Because this power is vested in the office, the Attorney General is, in this capacity, the country’s Public Prosecutor. The two labels describe the same person in different roles: “Attorney General” for the office as a whole, “Public Prosecutor” when the office exercises the Clause (3) power over criminal proceedings.

The clause also draws its own boundary. The power reaches “any proceedings for an offence” in the ordinary courts, but the text carves out three forums:

Excluded forum	What it covers
Syariah court	Offences under state Islamic law, within the states’ jurisdiction
Native court	Native customary matters in Sabah and Sarawak
Court-martial	Service offences under military law

The exclusions matter for understanding the reach of the office: the Clause (3) discretion is a power over prosecutions in the ordinary courts of the Federation, not over every tribunal that can try a wrong. For how the ordinary criminal courts are arranged, see the court hierarchy; for the Syariah side of the line, see civil and Syariah courts.

Choosing the court: Article 145(3A)

Article 145(3A) is a companion to Clause (3). It provides that federal law may confer on the Attorney General power to determine the courts in which, or the venue at which, any proceedings he has power under Clause (3) to institute shall be instituted, or to which such proceedings shall be transferred.

The clause is enabling rather than self-executing: it does not itself grant the venue power, but permits Parliament to confer it by federal law. It sits alongside the prosecution discretion so that the choice of where a matter is heard can be settled within the same framework.

Right of audience and precedence: Article 145(4)

Article 145(4) 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.

Two things are granted at once. The right of audience means the office may appear and be heard in any court or tribunal. Precedence means that, when the Attorney General appears, the office ranks ahead of any other person appearing in that matter. Together they place the office at the head of legal representation before the courts of the Federation.

Tenure and remuneration: Article 145(5) and (6)

Article 145(5) sets the terms on which the office is held. Subject to Clause (6), the Attorney General holds office during the pleasure of the Yang di-Pertuan Agong, may at any time resign, and — unless he is a member of the Cabinet — shall receive such remuneration as the Yang di-Pertuan Agong may determine.

“During pleasure” is a defined constitutional term of art: the office is not held for a fixed term. The clause also anticipates that the holder may or may not be a member of the Cabinet, and settles the remuneration question differently in each case.

Article 145(6) is a transitional protection. It provides that the person holding the office immediately before the Article came into operation continues on terms not less favourable than before, and is not to be removed except on the like grounds and in the like manner as a judge of the Federal Court. It is Clause (6) that Clause (5) is expressed to be “subject to”.

The office and the Chambers

The Attorney General heads the Attorney General’s Chambers (Jabatan Peguam Negara), the federal department through which the constitutional functions are carried out. The Chambers is organised into divisions covering, among other work, criminal prosecution, civil litigation for the Government, legal advisory work, and the drafting and revision of legislation. A Solicitor General serves as the senior deputy within the Chambers.

The distinction is worth keeping straight: Article 145 vests the office in a single named holder, while the Chambers is the standing institution of officers — members of the judicial and legal service — who assist in discharging its functions.

Common points of confusion

“Attorney General and Public Prosecutor are two different offices.” In the text they are the same office. The Public Prosecutor is the Attorney General exercising the Article 145(3) power. (Whether the two roles ought to be separated is a matter of policy debate that this text-based page does not enter.)

“The prosecution power comes from the Criminal Procedure Code.” The Code regulates how criminal proceedings run, but the discretion to institute, conduct or discontinue them is conferred by the Constitution itself, in Article 145(3).

“The Attorney General can prosecute in any court.” The Clause (3) power expressly does not extend to a Syariah court, a native court or a court-martial.

“The office has a fixed term.” Article 145(5) provides that it is held during the pleasure of the Yang di-Pertuan Agong; the Constitution sets no fixed term for the office.

Related knowledge

• The Federal Constitution
• Yang di-Pertuan Agong
• The Cabinet and the Prime Minister
• The court hierarchy
• Civil and Syariah courts
• Constitutional amendment

What’s next

To read the office in the primary text, take Article 145 clause by clause: 145(1) for the appointment and qualification, 145(2) for the advisory duty, 145(3) and 145(3A) for the prosecution power and its exclusions, 145(4) for the right of audience, and 145(5)–(6) for tenure and the transitional protection. The authoritative text is available through the Laws of Malaysia portal of the Attorney General’s Chambers and in the official reprint of the Federal Constitution.

This page is descriptive and text-based. It is a draft and has not been reviewed by a named human reviewer.