KUALA LUMPUR – January 12, 2018: If there is one post-victory agenda from Pakatan Harapan that legal experts think is absurd is their plan to appoint a member of parliament as the attorney-general.
This is because they argue that not only does this plan go against the federal Constitution but also some other related laws.
Pribumi Bersatu head strategist Dr. Rais Hussin had laid down the plan at the Pakatan convention last week, stressing that it was needed to prevent conflict of interests which may stem from the AG’s prosecutorial and advisory role to the government.
“It is better to appoint a qualified MP as AG so that he or she will be answerable to parliament,” he said, adding that under the plan, the role of the AG will be reduced to only that of legal adviser to the government.
When this plan was brought to her attention, constitutional expert Associate Professor Shamrahayu Ab. Aziz of the International Islamic University pointed out that it is legally impossible for an MP to be appointed an AG.
“The criterion to become an AG as stated in Article 145 (of the federal Constitution) is a person who is qualified to be a federal court judge.
“No one can be an MP and a judge at the same time. Even if you a teacher, you need to resign before you can contest in an election,” she explained.
According to Shamrahayu, appointing an MP as AG would also be going against the second clause of Article 145, where one of the stipulated duties of the AG is to advise the King on any legal matter.
In order to advise the Agong on legal issues, the AG cannot be partisan. The AG must be impartial because the Agong is above politics, she said.
Where Shamrahayu cited Article 145, lawyer Fatihah Jamhari argued that bestowing an MP with the AG’s prosecutorial powers would violate Section 376 of the Criminal Procedure Code.
“How do they want to take the power away and give it to an MP when the section states that the AG shall have the control and direction of all criminal prosecutions and proceedings?
“It cannot be done. It would be easier if they just appoint a new AG whom their prime minister favours as per Article 145 (of the Constitution),” said Fatihah.
In justifying her rebuttal on how it is impossible for an MP to prosecute, Fatihah cited a 1997 judgment by former federal court judge Gopal Sri Ram:
“Since the Constitution exclusively authorises the AG to conduct prosecutions, in must follow that no other authority may be lawfully empowered to authorised that function.”
Another lawyer, Zaki Azmi, said that the plan goes against the Constitution’s doctrine of separation of powers.
“Although the AG is of the executive branch, he is not an ordinary public servant because unlike other public servants, he is directly appointed by the Agong.
“If PH is arguing on the basis of abuse of power then one can also quibble that appointing an MP as the AG is also open to abuse. How so? Will the MP be able to prosecute his political allies?
“MPs should just stick to their legislative duties. Giving them a prosecutorial role sets a dangerous precedence as it may even pave the way for them to become judges,” said Zaki.