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Gani's Appointment as AG Most Improper, Irregular, Unconstitutional
By Lim Kit Siang
22/11/2001 8:13 pm Thu
Media Statement by DAP National Chairman Lim Kit Siang in Petaling Jaya on
Tuesday, 20th November 2001:
Gani's appointment as AG most improper and irregular and Parliament and
nation entitled to full explanation as to whether Ainum was pressured to
resign using health as the convenient reason
On Monday, Ainum tendered her letter of resignation citing health reasons,
and on the same day, the Minister in the Prime Minister's Department, Datuk
Dr. Rais Yatim announced Gani's appointment to take over as Attorney-General
on January 1 and that Gani would assume the duties of the A-G once Ainum
goes on leave "after clearing a few matters".
Rais said the Prime Minister, Datuk Seri Dr. Mahathir Mohamad had agreed to
the arrangement. But he seems to have forgotten that under our system of
constitutional monarchy, the Yang di-Pertuan Agong must also also agree to
Article 145(1) of the Federal Constitution which provides for the
appointment of the Attorney-General reads:
"145(1). The Yang di Pertuan Agong 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".
The appointment of Gani as the successor to Ainum as the new
Attorney-General is improper, irregular and even unconstitutional as it is
clear that Article 145(1) of the Constitution on the appointment of a new
Attorney-General could not have been complied with on the very same Monday
that Ainum tendered her resignation as Attorney-General, viz. the acceptance
of Ainum's resignation, the decision of the Prime Minister on the new
Attorney-General, the Prime Minister's advice to the Yang di Pertuan Agong
and the Yang di Pertuan Agong's appointment of the new Attorney-General.
Or has the whole constitutional process for the appointment of the
Attorney-General under Article 145(1) been completely short-circuited
without the need for any constitutional amendment by Parliament to the
extent that it is no more an appointment by the Yang di Pertuan Agong "on
advice", but a de facto appointment to be regularised subsequently by the
Yang di Pertuan Agong?
The irregular, improper and even secretive manner in the appointment of the
highest law officer of the land raises not only questions of constitutional
propriety of the appointment of Gani but the need for a more open,
transparent and consultative process for judicial appointments, including
the post of Attorney-General - especially if a policy decision is taken that
the A-G is not to be a political appointment with Cabinet status to ensure
direct accountability to Parliament - in the best interests of public
confidence in administration of justice .
There should an intense national discussion and debate on the important
subject of a fair, transparent and consultative process of appointments for
the Attorney-General and the judiciary but the most pressing issue at
present is Ainum's resignation after serving only one year of her two-year
appointment and Gani's premature appointment.
Yesterday, when asked about her plans following her resignation, Ainum said:
"I still have until the end of the year (as A-G). I'll try to find something
that I can do after I retire."
Together with the fact that she was involved as Chairman of the Legal
Profession Qualifying Board with an eight-hour meeting on Monday and a
nine-hour meeting yesterday over the CLP exam paper scam, it would appear
that her health problem arising from thyroid ailment is not so
incapacitating as to really require her premature resignation as
Rais Yatim has gone on public record to deny that Ainum had resigned because
she was pressured to do so, but he should know that such denials do not mean
anything in public life, especially as she has always been linked to Tun
Daim Zainuddin who has fallen out of favour.
This is why Parliament and the nation are entitled to a full explanation as
to whether Ainum had been pressured to resign using health as the
Yesterday, I had called on Parliament to do its duty to summon Gani to
appear before it to furnish full accountability to clear himself of two
serious allegations of obstruction of justice - threatening Anwar Ibrahim's
former tennis partner Datuk S. Nallakaruppan to fabricate evidence against
Anwar and shielding Minister for International Trade and Industry Datuk Seri
Rafidah Aziz from prosecution on five charges of corruption - and questions
have been raised as to whether Parliament has the powers to issue such summons.
The answer is very simple. As all Parliamentary Select Committees, like the
Public Accounts Committee, have powers under the Parliamentary Standing
Orders "to send for persons, documents or papers" [Dewan Rakyat Standing
Order 83(1)], Parliament clearly has the powers to summon Gani to appear
before it, either before a Special Select Committee or before the full
House of Parliament sitting as a Committee to clear himself of the two
serious allegations of obstruction with justice before taking the
appointment as the new Attorney-General.
If Gani is unable to do so, Parliament should adopt a formal motion to
object to the appointment of Gani as the new Attorney-General to ensure that
the few small steps taken in the past year to restore public confidence in
the administration of justice are not undermined and destroyed.
In making such a demand, Parliament will not be questioning the appointment
of the Yang di Pertuan Agong, as no such appointment has yet been made - as
Ainum is legally still the Attorney-General until the end of the year - but
only discharging its duty as the highest political forum in the country to
protect the best national interests.
Parliament will be committing a gross dereliction of duty if the controversy
over Gani's appointment as the new Attorney-General swirls all over the
country but does not enter the chambers of Parliament.
- Lim Kit Siang -