I am utterly disappointed by the statement made by the Minister in the Prime Minister's Department Dr Rais Yatim that the government should be allowed to go ahead with the appointment of the new attorney-general notwithstanding the constitutional requirement for the appointment to be consented to by the Yang di-Pertuan Agong.
He is also alleged to have said that the government should be allowed to do its work and that the question of royal approval would be up to the government to determine in the present circumstances.
Perhaps the honourable and learned minister had sadly misconstrued the constitutional provisions surrounding the appointment of the AG. The King is required to appoint the AG on the advice of the prime minister from a person who is qualified to be appointed as a judge of the Federal Court. It is not for the government to prematurely announce the appointment of the AG by fiat although it is unlikely that the King had been duly advised on the appointment.
The constitution provides that the appointing authority for the office of the AG is the King and not the PM or the government. Perhaps the government should have announced that it intended to advise the King that the learned head of the prosecution division, Abdul Gani Patail, should be appointed as the next AG and that a formal announcement would be made once the sovereign had consented to the appointment. Although the King is bound by the advice of the PM on the question of the appointment, it should be remembered that it is the King who formally appoints the AG as evidenced by the letter of appointment issued by the King (albeit prepared by the government).
It is hard to reconcile the honourable and learned minister's comments with the constitutional provisions and the conventions surrounding such appointments which are very clear and well established.
If the government is eager to formalise the new AG's appointment with great haste for reasons best known to it, it should have consulted with the present AG and other officers of her chambers to determine if the appointment can be consented to by the Timbalan Yang di-Pertuan Agong in his capacity as the Acting King. It is possible that the constitution itself may allow for certain powers to be delegated to the acting King in the absence of the King owing to ill health or indisposition or even in the case of death, when the office of the King is vacant pending the election of the new King.
I believe a precedent was established in 1983, when it was the then Timbalan Yang di-Pertuan Agong the Yang Di-Pertuan Besar of Negeri Sembilan who gave the royal assent to the controversial constitutional amendment bill to curb the prerogative powers of the King, in the absence of the then King, the Sultan of Pahang. As such it may be possible for the acting King to consent to the appointment of the new AG. Otherwise, the government should remain patient until the new King is elected.
I fail to see why the government is apprehensive about the appointment as the constitution itself, thanks to successive amendments, has made it clear that the King's consent is a mere formality and that he has absolutely no discretion in the matter.
However, I find it objectionable that the honourable and learned minister, himself a former senior practising lawyer and the author of an enlightening book on the subject of executive powers (albeit a mere exercise in academic freedom), can actually make statements justifying possibly unconstitutional behaviour on the part of the government for reasons of convenience and expediency.
Perhaps in future a further amendment to the constitution should be made by the government to even remove the requirement for any formal appointments to be made by the King. This could be replaced with a mere requirement to inform or notify the sovereign of the appointment while the PM or the government formally makes the appointment! Nothing could be more pathetic than this sad reflection of the state of constitutional government in this country.
The honourable and learned minister will be well aware of Walter Bagehot's famous essays on the English constitution when he spoke of the efficient and dignified parts of the constitution. The power of the executive to appoint the new AG falls squarely within the efficient part of the constitution while the consent of the King and the ceremonial of the act of appointment falls within the dignified part of the constitution. It is unfortunate that a minister of the Crown has misconstrued one and defiled the other!