Why the Attorney General Must be a Malay Muslim

THE ATTORNEY GENERAL- ITS ORIGINS AND PRACTICE IN THE UK

In the UK, the Attorney General (AG) and the Solicitor General as law officers for the crown are essentially non cabinet ministers who act for the government as its chief legal advisers. They have important responsibilities in regards to the law and its prosecution and enforcement.

The AG as such has a wide range of roles and special responsibility to uphold the law and the Rule of Law. He also has a significant role in the criminal justice system. More specifically in this regard he oversees the crown prosecutorial Service (as the DPP- Director of Public Prosecutions). He is meant to act independently in the sense that his advice is said to be impartial.

POTENTIAL FOR CONFLICTS OF INTEREST

There is often tension and argument about the AG’s role of being a party politician and member of government of the day. The problem often cited in these dual roles arises from his being bound to the principles of ‘collective ministerial responsibility’ and that of providing impartial and independent legal adviCe. The question often asked by critics is whether these two functions can co-exist harmoniously in the circumstances. To borrow a biblical phrase to make an opposing point in answering that question: “one man cannot serve two masters”. But is that necessarily the case.

Although this position has existed successfully in its current form for several centuries in Britain because of the very long history and traditions of parliamentary democracy and loyalty to the constitution of members of parliament steadfastly abiding almost unquestioningly by constitutional conventions (customary practice) the system appears to have worked in the UK. It has not always been smooth sailing but it has worked.

In 2003 for instance there were attempts by ministers of the government to influence the AG into providing a favourable pro government advice to cabinet supporting the ‘legality’ of an invasion of Iraq.

The AG has an even more important role and that is a constitutional role as the guardian of Public Interests. Here again the tensions over a potential for conflict between the AG’s position as member and minister of government and his independent role as AG is ever present and evident.

The so called public interest duty he has may not always be in line with or in harmony with that of the government’s own policy ideas and its position in many ways. So where does the AG stand and how does he deal with such a potential conflict? Does he provide independent advice? Whilst entitled to consult with ministerial colleagues as to where the public interest lies the AG is meant to exercise an independent judgement uninfluenced by consideration of party advantage.

EXAMPLES OF CONFLICTS IN RECENT TIMES IN THE UK- HOW IT WORKS

There have been a number of questionable decisions over prosecutions and ending of prosecutions by the AG over the years which have been controversial in England. The Spy catcher case, the Ponting case (public servant leaking of defense secrets) and there are others. The AG’s responses under question in parliament to each of these controversies have not always been convincing or met with a satisfactory answer.

As with many other positions within government, it is the preservation of the convention under the constitution and the balance for maintaining ministerial responsibility and independence that make these positions unique and work. Other such positions that present a potential for conflict include the position of speaker of the House and that of the Lord Chancellor. The latter used to sit in the House of Lords (government) whilst also sitting as a Law Lord in the Privy Council whch clearly presented a potential conflict. The practice was ended in 2005 by the Blair government after a period of nearly 500 years. If justice is meant to be done it is also meant to be seen to be done.

A PROSPECTIVE ATTORNEY GENERAL

The position of AG calls for a law officer of highest caliber at both professional and personal levels with the added appropriate academic qualifications, experience, independence and an unblemished record in the profession.

It must be said that the perception of whether the candidate in the position is independent or not is one to be judged on an objective standard. But what it certainly does not require are overtly politically minded candidates whose knowledge of the law and the constitution is elementary and perceived to be lopsided.

WHY THE MALAYSIAN CASE IS DIFFERENT AND REQUIRES THE INTERVENTION OF THE KING

In Malaysia it is the balancing of the racial and religious realities and sensitivities of the majority in particular with the rights and aspirations of the minority being preserved within reasonable bounds that is paramount in any appointment.

In the event of conflict it is the King as “defender of the faith and the cultural and religious interests” of the ‘majority’ that eventually must prevail over the political and party interests of whoever is in government. There are valid reasons for this even if it somewhat departs from the conventions of the Westminster constitutional system of government because of the unique make up of Malaysia’s people and cultures.

Relevant extracts from “British Government and the Constitution” Tomkins and Turpin
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