IT looks like a debate is taking place on who should be appointed as the new Attorney-General (AG) to replace Tan Sri Idrus Harun, who is reportedly ready to step down before his contract expires next March to give Prime Minister Datuk Seri Anwar Ibrahim a chance to pick his own man.
Most recently, prominent lawyer and retired judge Datuk Seri Gopal Sri Ram was reported as saying that judges would be most appropriate to be appointed as the AG.
On the other hand, there had been arguments that the position should be filled from within the AG Chambers (AGC). I have also written about this previously.
According to Gopal, a sitting judge appointed as AG is “trained to be fair in advising the government on non-policy issues, administrative matters, and the enforcement of laws”.
He also said “a judge would take an overall approach as he would have handled criminal and civil cases”.
“He will know where the balance of justice turns. Fairness, rather than a biassed view, will be the approach of a judge,” he told FMT.
Previously, Charles Hector of the Malaysians Against the Death Penalty and Torture (MADPET) movement had stated that the government should not appoint a sitting judge to the position of AG.
Hector said such appointments would raise questions about the independence of the judiciary and the judges themselves. He suggested that a senior public officer, such as a federal counsel or prosecutor from within the AGC or a lawyer, be appointed as AG.
Let me once again reiterate my view on this and why the position should be filled from within the AGC.
I firmly believe that the new person in charge must know the nuances and inner workings of the AGC. This includes in being well versed with the numerous divisions in the AGC as well as with the personnel therein.
For the record, there are so many divisions within the AGC — Advisory, Civil, and Prosecution Divisions; Drafting, Appellate, and Trial Divisions; Law Revision and Reform Division; International Affairs Division; Research Division; Syariah and Harmonization of Law Division; and Management Division are among those included.
In view of the numerous and distinct divisions within the AGC, no one can dispute the fact that an AG who is appointed within the system must be an all-rounder, as he will surely have hands-on experience and exposure not only to the realities but also to the management of all the divisions.
It is needless to say that legal practitioners, including those sitting on the bench, are well aware of the fact that it is a normal practise of the AGC to frequently rotate its officers to different departments so that its officers can acquire all relevant experience and exposure in all aspects of law.
In other words, AG’s role is not only limited to handling civil or criminal cases (as has been wrongly stated by Gopal) but also requires and expects him to be a good administrator as well, especially when AGC consists of thousands of employees all over Malaysia.
With all due respect, judges may lack this kind of exposure, particularly in understanding the inner workings as well as the human resource and management skills, as those sitting on the bench, from magistrate up to federal court judges, would only have a handful of staff assisting them.
A judge who is put in a new position to head the AGC without proper exposure will require time to understand and appreciate these inner workings. He also stands to be easily misled for lack of exposure.
On the contrary, a newly appointed AG from within the AGC would have hit the ground running immediately, as he is already familiar not only with the AGC’s officers but, most importantly, with the system and the work ethics and culture.
Gopal also said Malaysia should follow the example of Singapore in appointing serving and former judges to be the AG.
However, it is unfair to compare with our neighbors, as their pool of candidates is small compared to what is available in our AGC.
One last point: a serving judge, sitting as the AG, is also open to being compromised, as he may be confronted with having to decide on cases in which he has already presided or made a decision.
As I argued in my previous article, the morale in the AGC would be affected if an outsider were brought in, especially an unpopular outsider. We do not want a situation where, for example, a “rising star” within the AGC is demoralised for not being able to climb the ladder due to this kind of practise where the government always overlooks the pool within the AGC itself but rather parachutes in an outsider to be appointed as the AG, which may lead to them quitting the AGC altogether.
Anwar should not look any further, as he will have this talent pool within the AGC itself. As a matter of fact, it would be a mockery of the succession provisions provided in the Federal Constitution and the Criminal Procedure Code, where, by operation of law, these provisions envisage the Solicitor General to step in for the AG in his absence.
I hope Anwar is wise in making the decision to nominate someone from within the AGC to become the next AG. — Dec 30, 2022
Ali Rahman b Firdouse is a retired legal practitioner.
The views expressed are solely of the author and do not necessarily reflect those of Focus Malaysia.