If Rais was right, then Zahir was wrong in making two assumptions as
the basis for rejecting Kok’s motion, viz: firstly, that Gani has
not yet been appointed the new Attorney-General and secondly, that the
Prime Minister has not yet invoked Article 145(1) of the Constitution
to advise the King on the appointment of the
new Attorney-General - as the Speaker used the term “sedang dibuat” instead of “telah dibuat” to describe the process under Article 145(1).
However, Rais has insisted that his announcement of 19th November 2001 on the appointment of Gani as the new Attorney-General was right, proper and valid, that the Speaker was mistaken in his views as he was “not privy to the constitutional procedures undertaken by the government in the appointment of the new attorney general”, stressing:
“There is no confusion (over the appointment). The appointment of Abdul Gani as announced before will go on. I do not think that the speaker was privy to the procedures.”
The constitutional muddle and conundrum about the constitutionality and propriety of the appointment of Abdul Gani as the new Attorney-General, and whether such an appointment has actually been made in accordance with Articles 38(6) and 145(1) of the Constitution, cannot be resolved like a school-children’s spat depending on who has a louder voice with a stronger knuckle to have the last chest-thumping say of “I am right!”
Zahir and Rais are both degrading a momentous issue of great constitutional and national importance - with Zahir declaring in Parliament yesterday that Rais was wrong as “According to the parliamentary meeting procedures, I am right" while Rais insists outside Parliament that it was Zahir who was wrong as he was not privy to the constitutional procedures undertaken by the government in the appointment of the new attorney general.
Actually, Zahir and Rais are both right in that they were both wrong on the momentous constitutional issue of the appointment of the new Attorney-General.
Zahir was right when he claimed that “According to the parliamentary meeting procedures, I am right", as under the Dewan Rakyat Standing Orders, the Speaker’s ruling in Parliament is final unless it is overturned by a substantive motion in the House to review the decision, which is virtually impossible to do as illustrated by Kok’s new substantive motion under Standing Order 43 to review and overturn the Speaker’s decision to reject her earlier motion - as her substantive motion will never see the light of day and will not be given time for debate!
Rais was also right when said the Speaker was “not privy to the constitutional procedures undertaken by the government in the appointment of the new attorney general”.
But Zahir was wrong when he sought to arrogate to himself the power and right to pronounce on any subject in the country, for his power to make “final and conclusive” rulings as Speaker is confined only to the four walls of Parliament and limited to the interpretation of any of the Standing Orders or upon any matter of practice, and not an absolute power and unfettered right to make pronouncements on anything under the sun - in any event, the Speaker’s power is subject to review and repudiation by the House by way of a substantive motion.
Thus, when Zahir rejected Kok’s motion on the ground that the Yang di Pertuan Agong had not yet appointed Gani as the new Attorney-General and that the Prime Minister had not advised the King on this appointment under Article 45(1), the Speaker was not interpreting any Dewan Rakyat Standing Order or parliamentary practice.
Under the circumstances, he should not rely on his interpretation, understanding or guess-work about the constitutional provision and convention surrounding Article 45(1), but must base his decision solely on the facts of the case - whether Gani had been appointed the new Attorney-General by the Yang di Pertuan Agong and if not, whether such advice for the appointment had been tendered to the King by the Prime Minister under Article 45(1) - a pure question of yes or no, and not what should have been!
The Speaker should not have plucked from “thin air” assumptions as to what had happened in the controversy over the appointment of Gani as the new Attorney-General to reject Kok’s motion, but must be informed of the actual situation by the Prime Minister’s Department - which can only be from Rais, the Prime Minister or the Deputy Prime Minister.
The fact that Rais could openly declare that the Speaker was not “privy to the constitutional procedures” in the appointment of the new Attorney-General is confirmation that the reasons given by the Speaker in rejecting Kok’s motion were fatally flawed unless Zahir could say that he was informed by none other than the Prime Minister or Deputy Prime Minister!
Zahir had completely misconstrued his role as Speaker in entering the ring of Parliament as a “player” when he should be holding the ring like an impartial and independent referee to ensure that the parliamentary players, whether Barisan Nasional, Barisan Alternative or DAP keep to the rules of the game.
But Rais was also wrong in insisting that his announcement of November 19, 2001 on the appointment of Gani as the new Attorney-General immediately after Datuk Seri Ainum Mohd Saaid had met him for 35 minutes with her letter of resignation was proper, valid and constitutional.
This was because there was no way Article 145(1), not to mention Article
38(6), of the Constitution could be complied with to permit Rais to validly
and legally make the announcement of the appointment of a new Attorney-General
on the very same day as Ainum’s submission of her resignation without
showing utter contempt to the Constitution, the Yang di Pertuan Agong and
even the Conference of Rulers, as the various actions that must be
taken under the Constitution to appoint the new Attorney-General
after Ainum had submitted her resignation to Rais include at least the
following seven separate steps:
It is just unthinkable that all these seven steps, not to mention others, could be completed and complied with in the short time between Rais’ receiving Ainum’s letter of resignation and his press conference on the same day to announce Gani’s appointment as the new Attorney-General. The Conference of Rulers, for instance, had not met during this period and would only meet on December 12 to, among other things, elect the new Yang di Pertuan Aong.
Both Zahir and Rais are therefore wrong in their actions, positions and claims in the constitutional controversy, muddle and conundrum over the appointment of Gani as the new Attorney-General and both should apologise to Parliament and the nation for their double mistakes.
This is why the Prime Minister, Datuk Seri Dr. Mahathir Mohamad should end the most unseemly constitutional muddle which has been compounded by the double wrongs committed by Rais and Zahir, by confirming that the decision to appoint a new Attorney-General to succeed Ainum is still an open and not a closed subject.
Mahathir should reconsider his intention to appoint Gani as the highest law officer of the land as never before in the nation’s history has the proposed appointment of the new Attorney-General plunged the country into a new crisis of confidence in the system of justice in Malaysia.
There had been the past example of an Attorney-General leaving office under a cloud, but never before had there been a single case of an Attorney-General assuming office under a cloud!
In these circumstances, the Prime Minister and all Cabinet Ministers should place public confidence in the administration of justice above all other considerations and decide whether justice and the national interests could be served in proceeding with the intention to appoint Gani as the new Attorney-General.
In such a review, the Prime Minister and the Cabinet should seek the widest consultation of views from all sectors of society, in particular the Judiciary, the Bar Council, Parliamentarians, political leaders and representatives of the civil society.
I find it most shocking that up to now, the Bar Council had been conspicuously silent on the issue of the appointment of a new Attorney-General, which is not only most uncharacteristic of the Bar Council but at variance with its professional and statutory duties to protect and promote the cause of justice, and in particular, to ensure the uninterrupted restoration of a just rule of law and a truly independent judiciary in Malaysia. It is time for the Bar Council to speak up!