Reconsider status, role and appointment of AG

The provisions of the Malaysian Constitution - which describe the powers of the AG - are in a mess. Why is there a mess? The starting point is Article 145 of the Federal Constitution.

Under Article 145(1) the King ‘shall … on the advice of the PM’… ‘appoint a person who is qualified to be a judge of the Federal Court … to be the AG’.

Now it is the AG’s duty, under Article 145(1) to ‘advise the King’ and ‘the Cabinet ‘upon any legal matters’. The AG has ‘to discharge the functions conferred on him … by the [Federal] Constitution or any written law’.

Now compare those duties with oddly phrased Article 145(3). It says that the AG shall ‘have power, exercisable at his discretion [note this phrase] to institute, conduct or … discontinue any proceedings for an offence …’.

Read these phrases in Art 145(1) and (3) together. The conflict is obvious.

First, note that the PM appoints the AG. The AG can start, or stop criminal proceedings as he likes. Suppose any PM (past or present) is suspected of breaking the law. The AG can use his ‘constitutional discretion’ to refuse to charge the PM. He can stop any investigations.

Now suppose the AG says there is ‘no evidence’ for any further investigations. Suppose the AG goes further. He may call on the MACC to stop any further probes.

Suppose the AG tells the IGP, with the approval of the home minister, who is the PM’s good friend [or co-conspirator] to stop any investigation. What happens?

Suppose another MP or minister has illegally or improperly amassed massive amounts of money. Suppose the AG investigates this. Suppose there is massive election cheating. Suppose the AG works with the Election Commission and refuses to investigate this?

Suppose he says, ‘Under the Constitution, I am answerable to no one’. What happens? That is the conflict, you see. That is the 800-pound gorilla blotting out the light upon the national landscape.

So our constitution has created a monstrous, shadowy figure who is legally allowed operate surreptitiously in the subterranean corridors of power. He is answerable to none but the prime minister or the cabinet.

You might say that ‘the King can override everyone and demand the AG be dismissed’. You would be wrong. Under Art 145(1), the King appoints the AG. On whose advice? On the PM’s.

And under Art 40(1A), where the King, ‘in the exercise of his functions … is to act in accordance with … the advice (of the PM)(now watch this horrible phrase) … ‘the King ‘shall accept and act in accordance with such advice’.

So the King has no choice. He has to follow the (PM’s) advice whether the PM is a saint or a crook. Is this risky? Isn’t this a position of conflict?

The constitutional crisis is intolerable. It is illegal. This is the one that slammed Anwar into Sodomy 2. This is the power that sent Rafizi Ramli to prison. This is also the power that helped many corrupt BN ministers and their family to strut the Malaysian stage as gods. They knew they would never get into trouble. “PM my friend, mah.”

So our collective experience has proven, time and time again, that the current position of the AG is clearly in conflict with his constitutional duties. How should this be remedied?

First, the constitution must be amended. These horrible self-serving phrases should be thrown out. The current MPs in Pakatan Harapan, should - having kicked out the treasonous, dishonourable, noxious and slimy “kataks” - should attain a two-thirds majority in Parliament – i.e. 148 seats.

And then amend the constitution and insert appropriately worded articles. That is easy. Many nations have it. But must do a bit of study first la. Don’t la just copy buta.

In progressive nations – (and who can say we are not ever since May 9, 2018? We behaved better than the US voters!) – the role and status of the AG is one that is ‘accountable’. The AG must explain his decisions when called upon to do so.

Third, the constitution should be so amended that the AG must be chosen from amongst members of Parliament. Not a senator (oh no!) He must be answerable to Parliament, and through it, to the rakyat. Only a sitting PM, with the express consent of Parliament, may appoint the AG. That power should be with Parliament, just like the US.

So that, if the citizenry is unhappy with the AG, we can scold our MPs and ask them, ‘What on earth is your AG doing?’ Any recalcitrant AG may be removed by Parliament with ease, or at worse, cast out at the next election.

Fourth, if the AG refuses to investigate or charge someone, he must explain why. Now, it could be because that refusal is in the interest of the ‘security of the nation’ (read, wartime administration). This phrase is (and has been for ages) easily abused.

So ‘safety nets’ and special procedures must be put into place: e.g. the entire cabinet must justify, with evidence, the AG’s decision. By a procedure held in camera, under oath of secrecy, a Parliamentary special committee should extract his reason, and vote on it (just an example).

While we are at it, to prevent further abuse, the AG and the lawyers in the AG’s Chambers should not be allowed to represent (as they now do) the Election Commission in election petitions. Why? Because, under the Constitution, the EC is an independent body. It is not part of the executive (‘the government’ as is commonly known (with a capital ‘G’ la).

The EC must be neutral, naturally. Under Article 113, it is only the EC that may conduct elections. The constitution does not wish to put the EC under the powers of the ruling government, or any ruling party. That is fair. So under Art. 114, the EC (and its members) appointed by the King, ‘after consultation with the Conference of Rulers’.

Not by the PM. Not by the Cabinet. Not by Parliament. And certainly not by the ruling coalition. So why did the current EC dither? Why did it depart from its previous practice of announcing decisions as quickly as possible? So why did EC officers refuse to sign Form 14 on the nebulous excuse of “saya tunggu arahan” (‘I am waiting for instructions.’) Whose instructions?

So now you can see these conflicts. The constitution has to be amended. While we are at it, other urgent constitutional changes should also be effected.

The Bar, legal scholars, and opposition parties have been complaining about this for ages. No action has been taken. Mostly because over the decades, the ruling government lost its two-thirds majority. All that has changed. Now is the time to amend the Constitution.

Only one man can do it. Because he has done it before. Will our beloved Dr Mahathir Mohamad and the Pakatan Harapan MPs take this step? -Mkini