opinion
By virtue of his paper qualification, Minister in the Prime Minister's Department Dr Rais Yatim is the most qualified person to speak on legal matters for the government. As a holder of a doctorate degree in public law, Rais could be said to be the most knowledgeable person in the establishment to offer advice on the subject.Apart from his experience and practice, Rais has also published quite considerably on various issues pertaining to the law.
However, that does not seem to be what the Constitution envisages. Given that it has vested the power of prosecution as well as handling of legal matters with the office of the Attorney-General, Ainum Mohd Saaid is obviously the most appropriate person to speak on behalf of the government on these matters.
Given that important decisions on the law, invariably involve politics and issues of a sensitive nature, some countries in the Commonwealth prefer to put a politician as the holder of this office.
This does not mean that Rais cannot speak on legal matters. Indeed, given his qualifications and experience Rais has been doing that and perhaps, as an elected politician, he is more suitable for the job.
It is quite apparent that his position as a member of the cabinet has put him in a position of the so-called the de facto minister of law. Given that the Attorney-General, apart from being the government's chief legal adviser, is there basically to echo the government's legal position, Rais could, being a member of the government, assume such a duty.
Sultan's powers
Perhaps one could argue that given Rais' position as a member of the government, he is in a better position to do it than Ainum.
Be that as it may, having two persons to do the same job may lead to a difficult situation - something that may put the government in a bad light. This is quite the situation concerning the proposed amendments to the Kelantan constitution to be tabled by the PAS-led state government.
A recent newspaper report quoted Rais as saying that Kelantan Chief Minister, Nik Abdul Aziz Nik Mat, should brief the sultan first before he (the chief minister) tables the amendments at the state assembly.
Rais was quoted to have argued that as the amendments touched on the sultan's powers and functions in state administration, Nik Aziz had a duty to brief the sultan. Rais further argued that Nik Aziz would go against the spirit of the constitution if he failed to do so.
Rais was reported to have said that if the state assembly approve the amendments but the sultan disagrees with them, the latter need not sign the enactment and it would become void.
In response to this, Nik Aziz said that Ainum had given the state the green light by saying that the consent of the sultan was not necessary. Nik Aziz reproduced a letter which contained the advice of the Attorney-General.
It needs to be said that Ainum was correct as the amendments sought to be tabled on June 25 did not concern matters pertaining to the Kelantan Palace or rules pertaining to the rule of succession.
Draconian statute
The so-called amendments to the state constitution are essentially putting into effect what was done in 1994 by the Federal government. On that particular occasion, the Federal government in Parliament tabled amendments to the provisions pertaining to acting on advice as well as assent to bills. The amendments covered both Federal and state constitutions.
In other words, Rais was attacking the move which was made by the Federal government in 1994. It is quite clear that both Rais and Tengku Razaleigh still retain the views they held while they were in the now defunct Semangat 46.
On other issues, such as on the Internal Security Act (ISA), Rais, in particular, has changed his mind. His statement that his doctorate thesis, later published as a book, which condemned the draconian statute, was a mere 'academic exercise' was lambasted by many quarters. Some even suggested that his PhD degree be withdrawn.
As what is being done by Kelantan government is basically putting into effect what has been done by the Federal government in 1994, serious opposition to it may end up in court.
This is due to the fact that there are two views on the issue - those who think that the proposed amendments are amendments proper and those who think that it is essentially to bring the Kelantan constitution in line with the Federal Constitution.
The second view argues that with or without the proposed amendments, the position in Kelantan already changed the moment the 1994 amendments to the Federal Constitution came into effect.
Amendments regretted
Now, of course, there are views which question the validity of the 1994 amendment by Parliament, arguing that it was illegal.
In tabling the amendment, former deputy prime minister Anwar Ibrahim asserted that the consent of the Conference of Rulers was not necessary as the Federal government was of the view that such a consent was implicit in the constitutional declaration reached between Umno leaders and some of the Rulers back in 1992.
However, this does not seem to be strong enough to counter the unconstitutionality of the 1994 amendment as the 1992 declaration was about constitutional practice which, the declaration itself said, did not touch on any of the provisions in the Constitution.
For the record, Anwar himself regretted the move when he was sacked by prime minister Dr Mahathir Mohamad in September 1998.
No such requirement
It has to be said that while Tengku Razaleigh - as a non-member of the government - may continue to retain his views, it is not right for Rais to oppose the proposed amendments. As a member of the government, Rais must, just like his stand on the ISA, go along with the government which initiated the amendments in 1994.
His contention that the proposed Kelantan amendments need the consent of the sultan is quite doubtful. For one thing the procedural requirement contended by Rais sounds more of a right ancillary to the duty to act on advice on the sultan - the sultan has the right to get information from the government before he acts on their advice.
Furthermore, there is no such requirement under the state constitution. What the state constitution stipulates is that there are matters which can only be amended with the consent of the sultan and there are matters which fall under the competence of the state assembly.
As has been said above, the proposed amendments to be tabled before the Kelantan state assembly on June 25 is to put into effect what has been done at Federal level. Now if that later - should the matter come to court - turns out to be unconstitutional, the one done at the Federal level in 1994 would eventually follow suit.
Thus, while it was proper and right for Rais to make statements concerning the matter, his legal basis this time around seems to be doubtful. Mere authority or being in a position to do things is not always enough. At times, a correct and good argument is also necessary.
DR ABDUL AZIZ BARI is an associate professor of law at the International Islamic University Malaysia (IIUM) where he specialises in public law particularly constitutional law and comparative constitutional law.
