A response to the constitutional responsibility of the Attorney General ― Shukri Shahizam

JULY 13 ― The Attorney General has recently justified the prosecution of Ustaz Wan Ji Wan Hussin under the Sedition Act.

Despite the protestations of civil society against the prosecution, the court’s conviction, and the prosecution’s subsequent cross-appeal to against the sentence, the Attorney General (AG) is acting in a constitutionally proper way.

The AG has been accused of contravening manifesto commitments to repeal the Sedition Act, and similarly oppressive laws, which were made by the Pakatan Harapan (PH) coalition, several members of which have been subject to prosecutions under the very same acts.

In the same vein, he has been accused of perpetuating ‘selective prosecutions’, which are anathema to the rule of law. Neither of these charges is legitimate.

The AG succinctly summarised his Chambers’ position by stating that [u]nder our system of government, it is the Cabinet that decides on behalf of the Executive branch, to enact, repeal or amend laws for presentation to Parliament, with Chambers assisting in the drafting of new laws’ and that ‘[b]ecause the Sedition Act is still a law, it cannot be totally disregarded.

That can only occur if Parliament repeals it’. The veracity of these propositions is incontrovertible, and in any the AG is a much stronger authority than I to assert them as such. However, the practical reason and constitutional logic behind them does bear explaining.

Fundamentally, the Attorney General is not political actor in the same way that ministers of the government are.

He is an officer of the impartial administration, albeit one with a significant powers and weighty responsibilities which are entrusted to him by article 145 of the Federal Constitution.

The legitimation of his powers comes from his qualification for the office and the public trust which comes with the powers’ conferral.

This contrasts with that of the government and its ministers, which is derivative of the democratic mandate received received from electoral success and the presence of ongoing political accountability before Parliament and the public at large. (Although its is a questionable argumentative path to take, it may also be noted that the Reid Commission expressly recommended that office of the Attorney General be isolated from ordinary politics, as distinct from the analogous constitutional offices in the United Kingdom).

As the legitimacy of his office is dependent on its apolitical and impartial nature, it is crucial that the AG does not consider political motivations in the exercise of his powers.

As admirable as the PH manifesto’s promise to repeal the Sedition Act was, such a proposal is nonetheless political.

It is a matter of political judgement which was inchoately put to the rakyat during the 2018 General Election, and which will be put to Parliament if and when Cabinet decides to table its repeal.

 The rakyat, Parliament, and Cabinet are bodies which are constitutionally entrusted to make political judgments. The Attorney General is not.

It is also important that he is not. Much of the malignancy of the previous government stemmed from its abuse of the criminal law to persecute legitimate dissidents and critics of its administration.

It did so, in part, by instrumentalising the office of the Attorney General as Public Prosecutor for its own political aims.

It decided what circumstances would be politically favourable for its rule, and used the AG’s powers as a means to bring about their realisation.

Through its caprice, it subverted the rule of law and supplanted it with the rule by law.

The same danger lies if one argues for political non-enforcement of law, as many critics of the AG do. Non-enforcement of the law is pernicious, but perhaps in a way more subtle than the transgressions of the pervious government.

Nontheless, it can be essentialised into more or less the same terms. The PH government has a general political interest that it be seen as fulfilling its electoral promises.

One of those promises is the abolition of the Sedition Act.

Therefore, it has a general political interest in the abolition of the Sedition Act.

However, the promise is motivated by its commitment against the anti-democratic stifling of dissent as part of the “reform agenda”.

The problem, however, is that such a political motivation can be significantly served simply by the AG’s non-enforcement of the Act.

Therefore, if the AG does not enforce the Act at the direction – whether implicit or explicit – of the government, he would still be complicit in the instrumentalisation of his office for the attainment of political goals.

For that reason, it is important that the AG independently considers the factors which he decides are material to him.

Such consideration is not completely unaccountable, as the government is ultimately responsible for its judgment in appointing an individual as AG, and will bear the political consequences if its appointment is mistaken for one reason or another; the deferral of accountability is the constitutional trade off for the desirable trait of political independence.

In the present case, the AG’s policy only “to only turn to the Sedition Act as a measure of last resort” is still legitimate as its under-application of the Act is not motivated by an extraneous political concern, but by his independent consideration of the requirements of the rule of law, which is inclusive of human rights and civil liberties ― a proposition that has firm grounding in Part II of the Constitution.

Nonetheless, the rule of law simultaneously requires a fidelity to law ― no matter the subjective beliefs of any given office-holder ― which imposes an obligation against the discretionary nullification of a duly-enacted statute.

In this discussion, the constitution’s nature as a system of checks-and-balances must be kept in mind.

Even though the AG cannot ignore the Sedition Act no matter how much it conflicts the government’s views on the freedom of expression does not mean that government has no solution.

In fact the solution is obvious and us central to the constitution itself; it is is the government’s legislative initiative in Parliament.

It is the government’s role to promote its policy objectives in the constitutionally appropriate domains, the most significant of being the legislature.

If it has a political motivation to promote the freedom of expression through the abolition of the Sedition Act, it should abolish the Sedition Act.

It should not ask for the AG to abrogate his constitutional responsibility.

Anyone who desires him to do so should ask themselves whether they seek to promote the rule of law, or their own political desires.

* Shukri Shahizam is an LLB (Hons) (First Class) graduand of the London School of Economics and Political Science. He can be contacted at [email protected] or through twitter: https://twitter.com/shukrishahizam.

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

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