KUALA LUMPUR, June 8 — Politicians from both sides of the political divide, analysts and pundits have all weighed in on the prime minister’s unilateral appointment of human rights lawyer Latheefa Koya to head the Malaysian Anti-Corruption Commission (MACC).
But what do those in the legal fraternity think? Malaysian Bar president Abdul Fareed Abdul Gafoor has said this will jeopardise the agency’s independence.
He also added that Latheefa lacks the experience needed to lead law-enforcement agencies.
Lawyer Eric Paulsen said that whatever concerns Latheefa's critics may have over her appointment, it is nonetheless a valid one by the prime minister as it is his prerogative to do so.
“Of course it would be more consultative if the prime minister had discussed the appointment with his Cabinet or even with the PSC but he is not required to do so under the law,” he told Malay Mail, referring to the Parliamentary Select Committee on public service appointments.
Paulsen, who is also Malaysia's representative to the Asean Intergovernmental Commission on Human Rights (AICHR) said criticism that the PSC was bypassed seems rather unfair.
“The PSC has been formed since December 2018 but it has not been active. There have been several other major public appointments including the Inspector-General of Police, the Chief Justice, and the Election Commission (EC) commissioners since the formation of the PSC,” he said, asking why Latheefa's critics are only upset that the PSC was not consulted over her appointment.
Similarly Paulsen also dismissed claims of possible bias by the new MACC chief, given her background in politics.
“This is also rather unfair as you are penalising people who join politics as though their very political affiliation itself makes them prone to bias. Can we say Speaker Mohamad Ariff Md Yusof who was formerly from Amanah would be biased?
“It would be better to look at Latheefa's track record as a human rights lawyer for almost two decades just as we should look at Ariff's track record as a judge rather than their political membership,” he said.
Lawyers for Liberty director Melissa Sasidaran, who took up the post on the same day Latheefa was appointed, questioned why the Malaysian Bar raised the issue about her experience.
“Because if that is the criterion, then no one from the 'outside' can ever be appointed certainly not for these three men ― the Attorney General, the EC chairman or the Speaker,” she said on Twitter.
Sasidaran also pointed out that no hue and cry was raised when the other EC commissioners were appointed without going through the PSC, despite it having already been formed by then
“Since everyone is putting so much importance in the PSC, there is nothing stopping the PSC from reviewing all top appointments including the AG, Speaker and EC chair, even though they were appointed before the PSC's formation. If you are truly serious lah,” she said.
Constitutional lawyer Daniel Abishegam said he is confident Latheefa will do her best to uphold her responsibilities without fear or favour, based on her record in human rights work.
“I do not know her personally but by reputation I think she will do an excellent job. However, what worries me is the admission by the prime minister that this was his decision solely.
“This lack of consensus and discussion is dangerous when we have institutions in place to monitor such appointments and these institutions were bypassed,” he said.
Abishegam said the appointment made him flashback to Tun Dr Mahathir Mohamad’s first time round as prime minister where he was criticised for being a dictator.
“Also, the fact that she is a former senior member of PKR is not right so purely on principle, I think it is a bad move,” he said.
“So I think the criticism of Latheefa is a valid one. I understand the argument that this will render many capable people not being able to serve the country.
“But that is the price you pay for engaging in politics. The governance of the institutions must remain with career civil servants who remain apolitical,” he said.
Fellow lawyer Lim Wei Jiet also echoed Abishegam's sentiments, saying Latheefa's appointment process leaves much to be desired.
“Tun Dr Mahathir should have allowed the PSC process to take place. It is in such parliamentary select committee that MPs can assess whether Latheefa Koya can function independently as MACC chief.
“Parliament must be allowed to function as a check and balance against the Executive. This incident also highlights that there is a concentration of too much power in the PM's office... this needs to change,” he said.
Despite this, Lim is in support of Latheefa as he believes she has what it takes to do the job well.
However, lawyer Datuk Seri Jahaberdeen Mohamed Yunoos feels that Latheefa runs the risk of being labelled a political candidate and “will have the greater burden of appearing neutral.”
He sees her appointment as MACC chief though as an opportunity for her “to amend certain aspects of the MACC standard operating procedure (SOP) that she once challenged.”
Latheefa can now allow lawyers ― as a matter of MACC’s SOP ― to be present when their clients’ statements are being recorded.
Meanwhile, lawyer Andrew Khoo said that questions regarding Latheefa’s impartiality will depend on the type of investigations and prosecutions undertaken by the MACC.
“If the subject of MACC investigations and prosecutions are only members of opposition political parties, then questions about her impartiality will be raised,” Khoo explained.
He said though that any investigation and prosecution of people with ties to the previous government should not be automatically viewed as politically-motivated.
“The cancer of corruption has long been around, and during most of that time political control has been in the hands of one set of political parties.
“So it should not come as a surprise if action is taken against those with ties to the previous government; that is inevitable and should not be seen as politically-motivated prosecutions,” he said.
“The appointment process may not have been perfect but I believe she is the ideal candidate. She is industrious, intelligent, indefatigable and independent. As defence counsel she knows first hand the strengths and weaknesses of investigations and prosecutions.
“If the MACC under her leadership is successful in reducing the incidence of corruption in this country, and strengthening the anti-corruption, anti-abuse of power culture, she will have done a good job,” Khoo said.
Lawyer HR Dipendra said, “Section 5 of the MACC Act of 2009 is clear that as long as the prime minister is confident of Latheefa’s abilities, there is really nothing else left to be done. “There is no requirement under the MACC Act for a Parliamentary Select Committee (despite it being a political pledge). All that matters is what the prime minister thinks.”
When asked if Latheefa's past PKR ties will raise questions about her impartiality, he said: “Of course. It is a question of perception and unfortunately, perception is more important than reality.”
Meanwhile, lawyer Surendra Ananth said that Latheefa’s appointment was carried out in accordance with the law.
“The MACC is a statutory body under the MACC Act 2009, which provides that the chief commissioner be appointed by the Yang di-Pertuan Agong on the advice of the prime minister. This is precisely what was done,” Surendra said.
He pointed out that past affiliations to a political party does not necessarily mean that a person cannot be independent.
“However, the important question is whether the public perceives it in that way. I think only time can tell. If she does her job well, that perception will change,” he added.