The provisions of the Malaysian Federal Constitution – which regulate the powers of the AG  are in a mess. Urgent reform is imperative.

The starting point in understanding this mess 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.

It is the AG’s duty to advise the King and the Cabinet upon any legal matter.  The AG has ‘to discharge the functions conferred on him by the Federal Constitution or any written law’.

Compare those three duties with his powers.  These are described in Article 145(3), which states 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 it is actually the PM who appoints the AG.  The King merely rubber-stamps that.

The AG can start or stop any criminal proceedings, as and when he wishes.

We need to look at numerous scenarios and test these ‘duties’ and ‘powers’ against each other.

Where any PM, minister, or anyone (past or present) has broken the law, the AG can exercise his ‘constitutional discretion’ and refuse to charge the PM, the minister or their friends.  He can stop any investigation.

Now that does not allow the AG to say there is ‘no evidence’ if, indeed, there is.  But if the AG goes further, and calls off MACC from any further probes or prosecution, nothing can be done.

Suppose a Minister has  improperly amassed massive assets.  Or suppose there is massive election cheating, as a result of which the PM’s party comes into power by electoral fraud.  If the AG, working hand in glove with the EC, refuses to prosecute, what can be done?  Nothing, really.

If 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, same result.  No go.

And suppose he says, ‘under the Constitution, I am answerable to no one’.

What happens? Nothing.

What happens?

That is the problem, you see.  That is the conflict.  That is the 800 pound gorilla blotting out the light upon the national landscape.

So, our Constitution has given birth to a shadowy figure who is entitled to operate outside the law and in the shadows; and no light can be thrown upon him.

So our Constitution has created a monstrous, shadowy figure. He operates with impunity and is legally allowed to operate surreptitiously in the subterranean corridors of power.

He is answerable to none, other than the PM.

You might say that ‘the King can, quite independently override everyone and dismiss the AG’.

That is not so.  In this matter, the King cannot act independently at all.

Under Art 145(1), the King appoints the AG. On whose advice? On the PM’s.  If we want to fire the AG, the current PM has to say ‘Yes’.  The PM then has to advise the King, ‘Please fire the AG’.  But the PM does not feel like it.  [Unless of course the AG resigns.  He will not.  He may not feel like it either!]

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 not risky?  Doesn’t this place a crooked PM in a position of conflict?

It is. This constitutional crisis is intolerable. It is against the Rule of Law.

This is the power that got Anwar convicted for the second time. This is the power that succeeded against the whistle-blower Rafizi Ramli.  This is the power that helped many corrupt BN ministers and their families to strut the Malaysian stage, as if they were gods.  The Constitution made them so. They knew they would never get into trouble. They were immune – untouchable.

Our collective experience has proven, time and time again, that the current position of the AG is clearly in conflict of his Constitutional duties.

How should this be remedied?

First, the Constitution must be amended.  These horrible, self-serving articles should be thrown out.  The current MPs in Pakatan Harapan, should – having kicked out the noxious  kataks –  attain a two third majority in Parliament – i.e. 148 seats.  And then they should amend the Constitution by inserting appropriately worded articles that will force the AG to uphold the law, and quickly.  That is easy. Many nations have such provisions. But we need to carry out a proper study on it.  We can borrow them, but we can’t just copy blindly.

In progressive nations – [and ever since 09 May 2018, who can say we are not a progressive nation? We behaved with greater determination and discernment than the US voters!]  – the role and status of the AG is one that is ‘accountable’.  The AG must explain his decisions. He cannot get off scot-free.

Third, the Constitution should be so amended that the AG must be chosen from the MPs,  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, ought to appoint the AG.  That power should be with Parliament,  just like the US.  So that, if the rakyat are unhappy with the AG, we can take our MPs to task. We can ask them, ‘What on earth is the 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 feels it is not a good thing to charge a lawbreaker, he must explain why.  Now, it could be because that is in the interest of the ‘security of the nation’ [read, war time 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. A Parliamentary Special Committee should extract his reason, and vote on it.  (this is just an example).

While we are at it, to prevent further abuse, the AG and his lawyers should not be allowed to represent the Election Commission in election cases – as they now do. Why? Because, under the Constitution, the EC is an independent body.  It is not part of the executive (‘the Government’ as is commonly known). The EC must be independent and neutral. Under Article 113, it is only the EC that may conduct elections.  The Constitution does not place the EC under the thumb of the ruling government, or any ruling party.  So under Art. 114, the EC (and its members) are 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. And under section 5 of the Elections Act 1958, the Election Commission SHALL ‘exercise control and supervision over the conduct of elections …, and shall enforce on the part of all election officers fairness, impartiality…’. But the current EC has completely ignored this principle of independence and impartiality and … [compliance with the Constitution and the law].

So why did the current EC dither?  Why did it depart from its previous practice of announcing decisions as quickly as possible?  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 the current EC has completely ignored this principle of independence and impartiality.

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 [next article!].

Legal scholars, constitutional lawyers, the Malaysian Bar and opposition parties have been complaining about this for ages.

No action has been taken.  Mostly because, one BN did not wish to lose its hold over the people, and second, over the decades the ruling Government had lost its two-thirds majority.

Now, all that changed on ‘Nine Five’: 09 May 2018.

This is the time to amend the Constitution.

Only one man can do it, for he has done it before.

Will Tun Dr Mahathir Mohamad and the Pakatan Harapan MPs take this step?