The appointment of the MACC chief commissioner — Gregory Das

JUNE 6 — It is said that the Prime Minister had not consulted the Cabinet on the appointment of Latheefa Koya as the Chief Commissioner of the Malaysian Anti-Corruption Commission (MACC) (see note 1).

Several comments have been made and opinions expressed for and opposed to the appointment. There has been a general mixture of issues. The principal question is whether the appointment is legally proper.

Section 5 of the Malaysian Anti-Corruption Commission Act 2009 (“the Act”) provides that the Chief Commissioner is appointed by the King on the advice of the Prime Minister. It reads as follows:

(1)        The Yang di-Pertuan Agong shall, on the advice of the Prime Minister, appoint a Chief Commissioner of the Malaysian Anti-Corruption Commission for such period and on such terms and conditions as may be specified in the instrument of appointment.

A plain reading of Section 5 of the Act makes it clear that the Prime Minister is the only stated entity that advises the King on the appointment.

Constitutionally, the Prime Minister presides over the Cabinet which is appointed by the King on the advice of the Prime Minister. There is no requirement under the Federal Constitution for the Prime Minister to consult with his Cabinet on every matter of State. There may be matters on which the Prime Minister can and will act on his own accord without reference to the Cabinet. One such matter, unless otherwise directed in law, is the appointment of an individual to an office of State (see note 2). In respect of key appointments to public office, either the Federal Constitution or the relevant statute may provide for the King to make the appointment on the advice of the Prime Minister. In certain cases, such as the appointment of Parliamentary Secretaries, the Federal Constitution provides for the Prime Minister to make the appointment (see Article 43B, Federal Constitution).

Whether a Prime Minister consults his Cabinet on a matter of government may be determined by practice and convention which could vary with the incumbent in office. The concept of a Prime Minister acting of his own volition is not unknown as a matter of convention in commonwealth democracies. Britain, on whose system of government much of ours is based, provides examples. Prime Minister Harold Wilson did not have the issue of the devaluation of the British pound discussed in Cabinet for its obvious sensitivities and Prime Minister Margaret Thatcher often reduced the number of items for discussion on the cabinet agenda during her tenure (see note 3). Where a matter must compulsorily have the concurrence of the Cabinet as a whole it would be so stated as in India, where the Indian Constitution expressly provides that the President may only issue a proclamation of emergency on the decision of the Cabinet in writing.

It follows that the Prime Minister’s decision to advise the King on the appointment of Latheefa would be both lawful and proper as a matter of convention under the present legal framework.

Notwithstanding the above, it is acknowledged that the ruling coalition had promised in its Election Manifesto to permit a Parliamentary Select Committee to vet the appointment of candidates for, amongst others, the Chief Commissioner post at the MACC. A wider selection process is always welcomed as it would ensure a thorough scrutiny of any candidate proposed. However, such a process is not required under the current legal provisions. In the end, the appointment of the Chief Commissioner is a matter for the King on the advice of the Prime Minister.

* Notes:

1. https://www.malaymail.com/news/malaysia/2019/06/05/dr-m-says-didnt-consult-cabinet-on-latheefa-to-avoid-constraints-of-ministe/1759443.

2. Pages 466 and 467, “Document of Destiny: The Constitution of the Federation of Malaysia”, Shad Saleem Faruqi (2008).

 

Gregory Das is an Advocate and Solicitor of the High Court of Malaya.

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