It is most unfortunate that the "prematurity" of the announcement of Gani as the new Attorney-General has now been compounded and the constitutional muddle further muddied by the announcement of the Chief Secretary of the Government Tan Sri Samsudin Osman to Bernama that the Deputy Yang di-Pertuan Agong Sultan Mizan Zainal Abidin, who is performing the duties of the Yang di-Pertuan Agong, had given his consent in accordance with Article 145(1) of the Federal Constitution.
The question is on what authority had Samsudin made this statement and whether it was motivated solely to save the Minister in the Prime Minister's Department, Datuk Dr. Rais Yatim from the embarrassment of the double faux pax in prematurely announcing Gani's appointment and then insisting that the government should nonetheless be allowed to proceed with such an appointment when he grudgingly admitted that there was no way such a royal appointment could have been made constitutionally.
If so, Samsudin has not succeeded in saving Rais from his double faux pax - but had merely committed a third faux pax in this increasingly scandalous constitutional muddle.
As Deputy Yang di Pertuan Agong performing the duties of the Yang di
Pertuan Agong, Sultan Mizan Zainal Abidin has the undisputed powers to
appoint the new Attorney-General, but this must be done strictly in accordance
with Article 45(1) of the Constitution, which states:
"The Yang di-Pertuan Agong shall, on the advice of the Prime Minister, appoint a person who is qualified to be a judge of the Supreme Court to be the Attorney General for the Federation".
This means that although the Yang di Pertuan Agong or the Acting Yang di Pertuan Agong has the powers to appoint the Attorney-General, he cannot make the appointment on his own choice or initiative, or on anyone's proposal or advice. Only the Prime Minister - and not any Cabinet Minister or even the Deputy Prime Minister - can tender this advice to the Yang di Pertuan Agong or Acting Yang di Pertuan Agong on the appointment of the Attorney-General, and as Mahathir has not yet done so as evident from his comments after the UMNO General Assembly meeting yesterday, Malaysians want to know who had usurped the Prime Minister's prerogative under Article 145(1) to tender advice on the appointment of the Attorney-General.
In any event, how did the Chief Secretary to the Government suddenly realise that the Deputy Yang di Pertuan Agong had made such an appointment - after Rais had virtually conceded that there was no way for such a royal appointment could have been made in the short time between the submission of Datuk Seri Ainum Saaid's resignation letter and Rais' announcement on the same day?
Is Rais now going back to his original position and insists that he was right all along when he announced on November 19 that Gani had been appointed the new Attorney-General to succeed Datuk Seri Ainum Saaid? Rais will be trifling with his intellectual integrity, which had suffered grievously after his shocking confession about his doctoral thesis, if he is foolish enough to do so.
The question at issue is not whether the Yang di Pertuan Agong or the Acting Yang di Pertuan Agong can appoint the Attorney-General on the advice of the Prime Minister, but whether the Prime Minister had the time to do so and whether before doing so, he had adopted an open, transparent and consultative process to seeking independent opinions as to whether a particular nominee would enhance or undermine public confidence in the administration of justice.
There is one argument that the Yang di Pertuan Agong has the right and responsibility to appoint the highest government officials, such as appointing an Attorney-General who is "qualified, fair and wise" on the ground that the Yang di Pertuan Agong's responsibilities are to safeguard the integrity of those appointments.
Arising from this argument, there is also the contention that the Conference of Rulers have the prerogative and powers to intervene in the appointment of the Attorney-General.
I have been advised that both these positions are constitutionally untenable, as this is not supported by any dispassionate study of the Constitution or past constitutional practices with regard to the appointment of the Attorney-General - and there is no doubt that if these two contentions are well-grounded, they will have far-reaching implications for the whole concept of the system of parliamentary democracy in Malaysia.
Although the prerogative of the Prime Minister to choose the Attorney-General of his choice is unfettered under the Constitution, only requiring him to comply with the constitutional procedure of advising the Yang di Pertuan Agong to make the royal appointment , he must nonetheless pay heed to the democratic principles of accountability and transparency not in the court of law but the court of public opinion - especially as Rais' faux pax has given Mahathir the window of opportunity to reconsider the proposal to appoint Gani after the widespread and deep-seated objections and protests in the country.
Mahathir should persuade Ainum to complete her two-year term as Attorney-General as a national service to save the country from the worst constitutional muddle in history and avert plunging Malaysia into a new crisis of confidence in the administration of justice.
Malaysians are not convinced that Ainum has resigned after serving only one year of her two-year tenure solely for health reasons.
Firstly, Ainum had borne out valiantly in the Certificate in Legal Practice (CLP) examination scandal, involved in gruelling daily marathon meetings - which is proof that although Ainum's thyroid complaints are serious, they are not of sufficient magnitude to require her resignation.
Secondly, the bitter letter-to-the-editor and testimony of Malaysian Ambassador to the Netherlands, Datuk Noor Farida Ariffin, complaining that Ainum had been "driven from her job" and that her efforts to "stop the rot" in the Attorney-General's Chambers would now be unable to bear fruit.
Noor Farida was a very close colleague and confidante of Ainum during and after their days in the Attorney-General's Chambers, and what she wrote bear great authority and weight.
DAP fully supports Ainum completing her full two-year term as Attorney-General to get the administration of justice fully back on track in ensuring even-handed dispensation of justice, the end of selective prosecutions solely for political considerations and enhancing public confidence in the administration of justice.