news analysis

The Federal Constitution referring to the appointment of the attorney general has come into the spotlight after last week's announcement of chief prosecutor Abdul Gani Patail as the new AG, replacing Ainum Mohd Saaid.

The constitution's Article 145(1) stipulates that "The Yang di-Pertuan Agong shall, on the advice of the prime minister, appoint a person who is qualified to be a judge for the Federal Court to be the attorney general for the federation".

Constitutional experts are claiming that the announcement of Abdul Gani's appointment was made by the government without satisfying Article 145(1).

They pointed out that when the announcement was made on Nov 19 by the de facto law minister Dr Rais Yatim, the Agong was not in a position to appoint Abdul Gani as he was seriously ill after undergoing cardiac surgery in Singapore.

The King had returned to the country a day before the announcement and was immediately admitted to a private medical centre in Kuala Lumpur. He died three days later on Nov 21.

"Thus, in that case, how can the late Agong have appointed Abdul Gani?" asked a prominent constitutional lawyer who requested anonymity.

There was however a possibility that the Acting King, Sultan of Terengganu Mizan Zainal Abidin, might have appointed Abdul Gani.

Approval being sought

But more questions arose on Monday when parliament speaker Mohamed Zahir Ismail, in a reply to an opposition parliamentarian, said that the government was in the process of obtaining the Agong's approval for the appointment.

If this was the case, then the appointment of Abdul Gani is not final. Maybe the answer to this could be found in Rais' statement when he made the announcement of the new appointment.

"Gani will assume Ainum's duties before he takes over officially from Jan 1, 2002," he said, adding that Ainum would be on leave before her resignation takes effect.

This could mean that by making the announcement, Rais was only suggesting that Abdul Gani has not been officially appointed the new AG but was in line for the top post.

However, media headlines the next day clearly suggested the appointment of a new AG has already been made and that he will assume his duties in January.

A little bit of media misinterpretations perhaps?

But Rais did nothing to correct this 'wrong' assumption and so the apparent appointment of Abdul Gani stood.

It was with this assumption that the questions on the constitutionality of the appointment started to arise.

If no appointment was made by the late Agong or the Acting King, why then did the government announce the appointment? Rais could have waited until all constitutional procedures were completed before making the announcements. Why the hurry in appointing Abdul Gani?

Some also pointed out that Abdul Gani was not even the right candidate to carry out the duties of the AG in the absence of Ainum, as by seniority this should be done by the solicitor general Heliliah Mohd Yusof. So again, the question is, what's the hurry in getting Abdul Gani to the top post?

The answers to these ambiguities remain with those in power. However, one can safely make certain assumptions that constitutional aspects of the appointment were their least concerns.

Job well done

Perhaps speculations that Abdul Gani's appointment was a 'reward' for a job well done could have some truth.

After all, Abdul Gani had successfully prosecuted the ruling coalition's political enemies, PBS president Pairin Kitingan and former deputy prime minister Anwar Ibrahim - twice. He had also brought a possibly successful prosecution against the 29 Al-Ma'unah group members for their attempt to overthrow the government. The decision of that case will be known on Dec 27.

He is also credited for 'not proceeding' with the prosecution against International Trade and Industry Minister Rafidah Aziz and former Malacca chief minister Abdul Rahim Thamby Chik over allegations of corrupt practices.

On the other hand, maybe by making the premature announcement, Rais is showing his true feelings regarding the power of the Ruler - that the monarch was just a rubber stamp.

Then again, he would not be wrong as a series of constitutional amendments in the 80s had eroded the powers of the monarch, so much so that the Rulers have no discretionary powers to reject the prime minister's advice.

But if that was the case, the government could have obtained the necessary 'rubber-stamp' approval from the Acting King, who was also the deputy Agong.

The failure to do so creates even more questions. Was Sultan Mizan approached for the appointment which he had refused?

Possible scenario

One would not be wrong in assuming that maybe there is more than just Article 145 in this controversy. Mizan could have been advised on the existence of Article 38(6) which stipulates that the members of the Conference of Rulers may act in their discretion in advising the Agong of "any appointments".

If Mizan is elected as the new Agong, he would if one were to assume, want to put forward the proposed appointment before his fellow brothers.

How this will affect Abdul Gani's appointment is anybody's guess. However, expect some form of executive interference, especially given reports of the Rulers exerting their constitutional authority over the appointment of the new chief justice last year.