On Monday, Ainum tendered her letter of resignation citing health reasons, and on the same day, the Minister in the Prime Minister’s Department, Datuk Dr. Rais Yatim announced Gani’s appointment to take over as Attorney-General on January 1 and that Gani would assume the duties of the A-G once Ainum goes on leave “after clearing a few matters”.
Rais said the Prime Minister, Datuk Seri Dr. Mahathir Mohamad had agreed to the arrangement. But he seems to have forgotten that under our system of constitutional monarchy, the Yang di-Pertuan Agong must also also agree to the arrangement!
Article 145(1) of the Federal Constitution which provides for the appointment
of the Attorney-General reads:
“145(1). 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 Federal Court to be the Attorney-General for the Federation”.
The appointment of Gani as the successor to Ainum as the new Attorney-General is improper, irregular and even unconstitutional as it is clear that Article 145(1) of the Constitution on the appointment of a new Attorney-General could not have been complied with on the very same Monday that Ainum tendered her resignation as Attorney-General, viz. the acceptance of Ainum’s resignation, the decision of the Prime Minister on the new Attorney-General, the Prime Minister’s advice to the Yang di Pertuan Agong and the Yang di Pertuan Agong’s appointment of the new Attorney-General.
Or has the whole constitutional process for the appointment of the Attorney-General under Article 145(1) been completely short-circuited without the need for any constitutional amendment by Parliament to the extent that it is no more an appointment by the Yang di Pertuan Agong “on advice”, but a de facto appointment to be regularised subsequently by the Yang di Pertuan Agong?
The irregular, improper and even secretive manner in the appointment of the highest law officer of the land raises not only questions of constitutional propriety of the appointment of Gani but the need for a more open, transparent and consultative process for judicial appointments, including the post of Attorney-General - especially if a policy decision is taken that the A-G is not to be a political appointment with Cabinet status to ensure direct accountability to Parliament - in the best interests of public confidence in administration of justice .
There should an intense national discussion and debate on the important subject of a fair, transparent and consultative process of appointments for the Attorney-General and the judiciary but the most pressing issue at present is Ainum’s resignation after serving only one year of her two-year appointment and Gani’s premature appointment.
Yesterday, when asked about her plans following her resignation, Ainum said: “I still have until the end of the year (as A-G). I’ll try to find something that I can do after I retire.”
Together with the fact that she was involved as Chairman of the Legal Profession Qualifying Board with an eight-hour meeting on Monday and a nine-hour meeting yesterday over the CLP exam paper scam, it would appear that her health problem arising from thyroid ailment is not so incapacitating as to really require her premature resignation as Attorney-General.
Rais Yatim has gone on public record to deny that Ainum had resigned because she was pressured to do so, but he should know that such denials do not mean anything in public life, especially as she has always been linked to Tun Daim Zainuddin who has fallen out of favour.
This is why Parliament and the nation are entitled to a full explanation as to whether Ainum had been pressured to resign using health as the convenient excuse.
Yesterday, I had called on Parliament to do its duty to summon Gani to appear before it to furnish full accountability to clear himself of two serious allegations of obstruction of justice - threatening Anwar Ibrahim’s former tennis partner Datuk S. Nallakaruppan to fabricate evidence against Anwar and shielding Minister for International Trade and Industry Datuk Seri Rafidah Aziz from prosecution on five charges of corruption - and questions have been raised as to whether Parliament has the powers to issue such summons.
The answer is very simple. As all Parliamentary Select Committees, like the Public Accounts Committee, have powers under the Parliamentary Standing Orders “to send for persons, documents or papers” [Dewan Rakyat Standing Order 83(1)], Parliament clearly has the powers to summon Gani to appear before it, either before a Special Select Committee or before the full House of Parliament sitting as a Committee to clear himself of the two serious allegations of obstruction with justice before taking the appointment as the new Attorney-General.
If Gani is unable to do so, Parliament should adopt a formal motion to object to the appointment of Gani as the new Attorney-General to ensure that the few small steps taken in the past year to restore public confidence in the administration of justice are not undermined and destroyed.
In making such a demand, Parliament will not be questioning the appointment of the Yang di Pertuan Agong, as no such appointment has yet been made - as Ainum is legally still the Attorney-General until the end of the year - but only discharging its duty as the highest political forum in the country to protect the best national interests.
Parliament will be committing a gross dereliction of duty if the controversy over Gani’s appointment as the new Attorney-General swirls all over the country but does not enter the chambers of Parliament.