Minister in the Prime Minister's Department, Datuk Dr. Rais Yatim, said on Saturday that Acting Yang di-Pertuan Agong Sultan Mizan Zainal Abidin consented to the appointment of Gani as the new Attorney-General from Jan 1, succeeding Datuk Seri Ainum Mohd Saaid by signing the document on Friday.
As a result, Rais said it was not necessary that the appointment be made after the 12th Yang di-Pertuan Agong was appointed.
He said Article 145 (1) of the Federal Constitution had now been invoked and the Yang di-Pertuan Agong had been advised on the appointment.
It is a farce that Rais should create a constitutional muddle for about three weeks before admitting that his announcement of Gani as the new Attorney-General was unconstitutional and improper as it was obvious to any astute observer that Article 145(1) of the Constitution on the appointment of the Attorney-General on the advice of the Prime Minister had not been invoked.
Acting Yang di-Pertuan Agong Sultan Mizan Zainal Abidin's powers to give the royal consent under Article 145(1) to appoint Gani as the new Attorney-General is undisputed. However, the pertinent question that must be asked is whether Article 145(1) had been properly invoked, viz: whether the Yang di Pertuan Agong had been properly advised, in this case by the Prime Minister, as there is no provision for the Prime Minister's powers to advise the King under Article 145(1) to be delegated to Rais or any other Cabinet Minister!
Did the Prime Minister, Datuk Seri Dr. Mahathir Mohamad have a royal audience with Sultan Mizan Zainalo Abidin last Friday to advise him on the appointment of Gani, or was this audience delegated - and if so, unconstitutionally - to Rais?
This is why this constitutional muddle should be cleared up by way of a Ministerial statement in Parliament tomorrow to convince Malaysians that there was no "cloud" of constitutional propriety in Gani's appointment.
Even if Gani's appointment is constitutional, it is definitely improper,
irregular and lacking in legitimacy, raising many disturbing questions,
Rais has belatedly realised that it would be unconstitutional to appoint Gani as the Acting Attorney-General when Datuk Seri Ainum Saaid goes on leave pending her resignation on December 31.
This is because under the Constitution annd the laws, it is the Solicitor-General, Datuk Heliliah Mohd Yusof who should be the acting A-G and it would be unconstitutional to appoint the Head of the Prosecution Division to usurp the powers of the Solicitor-General, the No. 2 post in the AG's Chambers.