FEBRUARY 25 — In “Hats off to the drafters of the Bills to amend the Federal Constitution”, I considered the proposed Article 145A(1) as a standout provision. It reads as follows:

The Yang di-Pertuan Agong shall in his discretion, on the recommendation of the Judicial and Legal Service Commission Constitution and after consultation with the Conference of Rulers, appoint a person qualified under Clause (2) to be the Public Prosecutor for the Federation.

It differs from Article145(1) of the Federal Constitution which provides that the Yang  di-Pertuan Agong (YDPA) “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.”

Article 145(1) is retained and it is understandable why as the Attorney General (AG) is the legal advisor to the government led by the prime minister.

On Tuesday (February 24), PKR MPs aligned to former PKR deputy president Datuk Seri Rafizi Ramli echoed the concerns raised a day earlier by several prominent civil society organisations — including Bersih 2.0, Ideas, and Rasuah Busters — that “the current framework gives the prime minister and the Judicial and Legal Service Commission (JLSC) disproportionate control over the appointment and dismissal of the new Public Prosecutor”.

I beg to differ on “disproportionate control” of the prime minister and the JLSC over the appointment of the new Public Prosecutor (PP).

The author argues that concerns over ‘disproportionate control’ in appointing the new Public Prosecutor are overstated — because the proposed constitutional amendments place the decision squarely in the Yang di-Pertuan Agong’s discretion — and that the Bills deserve thorough, distinguished scrutiny via a parliamentary select committee. — Picture by Firdaus Latif
The author argues that concerns over ‘disproportionate control’ in appointing the new Public Prosecutor are overstated — because the proposed constitutional amendments place the decision squarely in the Yang di-Pertuan Agong’s discretion — and that the Bills deserve thorough, distinguished scrutiny via a parliamentary select committee. — Picture by Firdaus Latif

The key takeaways from the proposed Article 145A(1) are, to my mind, as follows:

  • The Yang di-Pertuan Agong (YDPA) acts in his discretion;
  • on recommendation of the JLSC; and
  • after consultation with the Conference of Rulers.

The prime minister is clearly removed from a role in the appointment of the PP, unlike in the appointment of the AG.

The JLSC is one of seven public services established under Article 132(1) of the Federal Constitution. The JLSC itself is established under Article 138(1) and under Article 138(2), it consists of:

(a) the Chairman of the Public Services Commission, who shall be Chairman;

(b) the AG or, if the AG is a member of Parliament or is appointed otherwise than from among members of the Judicial and Legal Service, the Solicitor General; and

(c) one or more other members who shall be appointed by the YDPA, after consultation with the Chief Justice of the Federal Court, from among persons who are or have been or are qualified to be a judge of the Federal Court, Court of Appeal or a High Court or shall before Malaysia Day have been a judge of the Supreme Court.

The objection to the JLSC should be because the AG is a member of the JLSC. The AG, indirectly therefore, has a say in the recommendation of a person to be appointed as PP.

Be that as it may, the recommendation is but a recommendation, which is a suggestion that the person is good or suitable for the office. Acting in his discretion, the YDPA is not bound by a suggestion that a person be appointed as the PP.

The view that there will be “disproportionate control” over the appointment of the PP is itself disproportionate considering that there will be consultation with the Conference of Rulers.

To consult means to refer a matter for advice, opinion or views. According to Black’s Law Dictionary, the word “consultation” is the act of asking the advice or opinion of someone.

To consult should not be misconstrued as granting the consulted party the authority to either sanction or obstruct a decision to be made by the consulting party. It merely confers on the party the right to be apprised of the matter to be decided upon.

Even so, the YDPA is not bound by the opinion or views of the Conference of Rulers. One who consults does not seek the consent of the other, but merely seeks advice, opinion or views. He may consider the advice or opinion or views given but he is not bound by it.

Be that as it may, I concur with the view that the two Bills to amend the Federal Constitution be referred to a parliamentary select committee.

Like the Constitutional (Amendment) Bill 2024 which I said deserved “distinguished treatment”, the two Bills too deserve the distinguished treatment.

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