Restore the Integrity of our national institutions by removing the power of the Prime Minister to appoint senior officers of our national institutions
The integrity of our national institutions have been undermined because the Malaysian Constitution and other legislation concentrate the power of appointment of officers of our national institutions in the hands of one man, the Prime Minister. The following are appointed by the Agong on the advice of the PM (which the Agong is constitutionally bound to take) and sometimes another advisor:
|Appointment||Additional Advisor||Article in Constitution|
|High Court Judges||Chief Judges of the High Courts||122B (1) & (4)|
|Court of Appeal Judges||President Court of Appeal||122B (1) & (4)|
|Federal Judges||Chief Justice||122B (1) & (4)|
|Attorney General||None||145 (1)|
|Auditor General||None||105 (1)|
|IGP||Police commission chaired by Home Minister||140 (4) & (5)|
Interestingly the Constitution does not mention advice from the PM when appointing the Chief of Defence Staff (137 (3) (c)) nor members of the Election Commission (114 (1)). 114 (2) says “In appointing members of the Election Commission the Yang di-Pertuan Agong shall have regard to the importance of securing an Election Commission which enjoys public confidence”.
The power of the PM to appoint the head of Bank Negara and MACC is not found in the constitution and is based on legislation.
Add to this the PM’s power to choose all BN candidates to stand for election, and his control of all the public institutions in the country is complete. Of course, leaders of opposition parties also claim the right to choose election candidates. So we get the situation where loyal but dumb party members become MPs.
In other countries like the UK, candidates for electoral office (Parliament, etc.) are selected by party members living in that electoral constituency. In this way, the party grassroots control the MPs who, not being dependent on the favour of party leaders, control the PM and cabinet members. But we cannot legislate how political parties run their affairs, and this much needed reform has to be left to party members.
Transferring the power of appointment from the Prime Minister to an independent, non-political Commission
Our knowledge of human nature should tell us that if the PM has absolute power to appoint the senior officers of our national institutions, then these officers will serve the interests of the PM rather than act professionally in the interests of the nation. The US curbs this power of patronage through Senate hearings. The President proposes a candidate for high office, e.g. Supreme Court Judge, but the candidate has to face grilling by the Senate and ratification by a simple Senate majority. In the UK, the PM is not involved in any appointment for high office, except for the appointment of the Attorney General, although other members of the cabinet and the Speaker are. The general method they adopt is for the politicians to appoint an independent, non-political Commission which then selects the candidate to appoint to high office.
In the Malaysian context, if we really want to restore the integrity of our national institutions and free them from political interference, then we must transfer the power of the PM to advise the Agong on the appointment of judges, Auditor General, IGP, Election Commission, the proposed Director of Public Prosecutions to replace the Attorney General, and his power to appoint the governor of Bank Negara and the director of MACC, to an independent, non-political Commission for Appointment to High Office. There could be a separate Judicial Appointments Commission for the appointment of judges and the proposed Director of Public Prosecutions. These Commissioners should be appointed by Parliament.
It is vital that these Commissioners have the confidence both the ruling party and the opposition. Therefore, a Speakers’ committee with equal representatives from the ruling party and opposition under the chairmanship of the Speaker, should select and propose candidates for Commissioners for ratification by Parliament. Only people with support from both sides of the House can be proposed. Thus a nominee of the ruling party must have support from at least 20% of the opposition representatives on the Speaker’s committee and vice versa.
It is not recommended that the Speaker’s committee or any other committee of politicians appoint senior officers of our national institutions direct because politicians will always fight to gain political advantage from any specific situation. By setting up an independent, non-political Commission to appoint on their behalf, politicians make a prior commitment not to interfere no matter which future candidate is competing for which future post.
The Attorney General
The position of the AG needs to be discussed further. His function is to act as legal advisor to the government as well as deciding whether there is sufficient evidence to start criminal proceedings in court. The government should be able to appoint whoever it likes to be its legal adviser. On the other hand, appointment by the government will bias the AG in favour of the government, i.e. the AG will be unwilling to start proceedings against the government and eager to start proceedings against the government’s critics. Therefore, the power to prosecute should be taken away from the AG and vested in an independent Director of Public Prosecution who shall be appointed by the Commission for Appointment to High Office.
Article 145 (3) giving the power to the AG “exercisable at his discretion, to institute, conduct or discontinue” any criminal prosecution must be repealed. All acts of public servants including the AG and his proposed replacement, the Director of Public Prosecutions, must be open to criticism and remedy by a court of law. The criteria used by the UK Crown Prosecution Service to decide whether to institute proceedings is a public document.
Experience in the UK and US
In case you are interested to know what happens in the UK and US, I add these additional notes.
Appointment of Judges
In the US, for the appointment of Supreme Court Justices, the President nominates a candidate who is then grilled by the Senate Judiciary Committee, comprising both Democrats and Republicans, on his/her past record, his/her qualifications and his/her suitability for the post. The nomination then goes to the full Senate with a positive, negative or neutral report from the Committee. A simple majority vote is required to confirm or to reject a nominee. If the nominee is rejected, the President will nominate another candidate. Similar Senate hearings are required for other important appointments like head of the Federal Reserve Bank.
The President will nominate and the Senators will vote for a nominee whose outlook is close to their political ideology. If the President and Senate majority are from different parties, then the person eventually appointed will be a compromise between the two ideologies. This method of appointment is therefore not suitable for Malaysia where the PM and Senate Majority will be from the same party and thus the people appointed will always favour the ruling party.
The Constitution Reform Act 2006 made the appointment of judges in the UK more transparent and standardised. The Justice Minister is called the Lord Chancellor who sits in the Cabinet and is responsible for the efficient functioning and independence of the courts. He forms a Selection Panel to appoint 15 members of a Judicial Appointments Commission (JAC) who appoints all the judges, except for senior roles, such as Lord High Justice, Heads of Division, etc. For these positions, a special selection panel is formed consisting of 2 or 3 of the most senior judges plus 2-3 members of the JAC who make their recommendation to the Lord Chancellor who may accept or reject it.
When a vacancy for a judge occurs, the JAC advertises the post so that all those who are eligible may apply. It makes its selection based entirely on merit and not on whether the candidates’ outlook matches the political ideology of the ruling party as in the US.
Appointment of Attorney General
In the UK the function of the AG is to give legal advice to the Cabinet and to represent the government in litigation, the major part of which is prosecuting criminal offences. The AG therefore oversees the independent Crown Prosecution Service run by the Director of Public prosecutions. He does not interfere with decisions of the Crown Prosecution Service in individual cases. He is appointed by the PM and is normally a MP of the ruling party who is an eminent lawyer. He is not a member of the Cabinet but may be called to Cabinet meetings to give legal advice.
In the US the AG is appointed by the President following a Senate hearing. He gives legal advice to the government and is a member of the cabinet but not a member of the Congress nor Senate. He is responsible for prosecuting violations of Federal law.
In the UK, arrangements for polling day, including the counting of votes, and voter registration are the responsibility of local councils. Until 2015, it was the responsibility of the head of household to register eligible voters residing in his household, by returning a yearly registration form to the local council. The system has now changed so that each individual voter must register individually.
The Electoral Commission is a watchdog which supports and monitors the efficiency of local councils in running elections and registering voters. It also registers political parties and regulates political donations according to the law. It periodically carries out checks on the completeness and accuracy of electoral rolls. Any commissioner vacancy is advertised and the selection and appointment made by the Speaker’s committee comprising the Speaker as Chair, 3 ex-officio members and 5 others appointed by the Speaker.
Delineation of electoral constituencies are made by the separate Boundaries Commission. The chair is nominally the Speaker but by convention he takes no part in the work of the Commission which is effectively led by the Deputy Chair. The Deputy Chair must be a serving Judge of the High Court, and is selected and appointed by the Lord Chancellor. The Deputy Chair is supported by two other Commissioners, whose appointments are made following an open public appointments selection process. The Commission submits its recommendations to Parliament which may accept or reject them.
Appointment of Chief Constable
The UK is divided into several Police Authority Areas, each headed by a Chief Constable. Prior to 2012, members of the Police Authority, who were responsible for appointing the Chief Constable, were representatives of local councils and magistrates. From 2012 onwards, the residents of each Police Authority Area elect a Police and Crime Commissioner (PCC) who may be from a political party or is independent. The PCC holds the Chief Constable to account for the policing of the Area and are also responsible for the appointment, suspension and dismissal of the Chief Constable.
Above the PCC is the Police and Crime Panel which is responsible for scrutinising the PCC’s decisions and ensuring this information is available to the public. This panel has the power to veto a PCC’s proposed candidate for Chief Constable by a two-thirds majority.