JULY 25 — Perikatan Nasional (PN) deputy chairman Datuk Seri Hamzah Zainudin has raised concerns over the appointment of a serving civil servant as Auditor-General (AG). 

He makes reference to Articles 7 and 105(4) and (5) of the Federal Constitution.  

Article 7 is on “Protection against retrospective criminal laws and repeated trials”. What has this got to do with the appointment of AG?

Article 105(4) and (5) read as follows:

“(4) Parliament shall by law provide for the remuneration of the Auditor General, and the remuneration so provided shall be charged on the Consolidated Fund.”

“(5) The remuneration and other terms of office (including pension rights) of the Auditor General shall not be altered to his disadvantage after his appointment.”

The above are said to imply that the AG must not be a serving member of the civil service, stressing the importance of independence in the role.

It is curious that Hamzah makes no reference refer to Article 105(1) which states as follows:

“There shall be an Auditor General, who shall be appointed by the Yang di-Pertuan Agong on the advice of the Prime Minister and after consultation with the Conference of Rulers.”

The Opposition Leader does not also refer to Article 139(1), which reads as follows:

“(1) There shall be a Public Services Commission, whose jurisdiction shall, subject to Article 144, extend to all persons who are members of the services mentioned in paragraphs © and (f) of Clause (1) of Article 132, other than the Auditor General, to members of the public services of the State of Malacca and the State of Penang, and, to the extent provided by Clause (2), to members of the public service of any other State.” (Emphasis added)

While Hamzah may have conceded that the appointment of the AG “may not be illegal”, Kota Bharu MP Datuk Seri Takiyuddin Hassan did question the legitimacy of Datuk Wan Suraya Wan Mohd Radzi’s appointment as AG and whether it complied with the Federal Constitution.

Takiyuddin is not just a lawmaker but a lawyer by profession. He should know that there is a legal presumption called presumption of legality which is an established common law rule.

It is the very general presumption that people have acted lawfully unless and until the contrary is proved. The presumption is the basis of the requirement that someone who alleges wrongdoing on the part of another must establish the truth of his allegation, according to the relevant standard of proof and in a court of competent jurisdiction.

The presumption is said to be strong as the party who alleges having an onerous burden to overcome the presumption with compelling prima facie evidence of grounds to challenge the legality or lawfulness of an act. (See the Federal Court decision in Sundra Rajoo a/l Nadarajah v Menteri Luar Negeri, Malaysia & Ors [2021] 5 MLJ 209)

Let’s raise this question about the opposition raising questions over the appointment of Wan Suraya as AG: are they principles of good governance and independence or politics?

**This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.