IT has been reported that Prime Minister Anwar Ibrahim is considering a list of three judges to become the next attorney-general (AG).

The report also said that the incumbent AG, Idrus Azizan Harun, had expressed his intention not to serve out the rest of his contract which ends in March next year.

The three judges said to be under consideration are Court of Appeal judge Kamaludin Md Said, and High Court judges Ahmad Fairuz Zainol Abidin and Wan Ahmad Farid Wan Salleh.

However, I would like PM Anwar to reconsider this list and instead look at promoting someone from within the Attorney General’s Chambers (AGC) for the top post as previously done in the case of Abu Talib Othman.

I would submit two reasons for this:

1. Lessons from the past

Tommy Thomas was appointed AG by the new government led by Dr Mahathir Mohamad in 2018. 

What happened next is something we are all aware of. Thomas started charging Umno leaders, especially Najib Razak over the 1MDB scandal. Practising lawyers were hired to prosecute cases related to 1MDB. The entire AGC was soon working extra hard to look into 1MDB matters. This led to some discontent in the AGC, largely because the AGC’s able prosecutors were left out of taking charge of prosecuting these high-profile cases.

At the same time, several cases involving prominent leaders of the ruling government were also dropped. I don’t have to list down the cases involved as it is a known subject matter.

All these did not go down well within the AGC and among the members of the public, resulting in bad perceptions and narratives created against the AGC and Thomas.

My fear is that if PM Anwar follows the same pattern of bringing in someone from outside to lead the AGC, that person would be seen as a political appointee of the current government of the day. Once again, the perception would be on a repeat mode – that the PM has brought in someone to help him, either to charge his political rivals or to release those who he needs.

Do we want the AGC to be under such scrutiny again? This also leads to my second reason.

2. Ongoing high-profile cases and public confidence

There are so many high-profile cases still ongoing in the courts. Some are at trial stage while others are on appeal. There are also so many interlocutory matters pending. There needs to be stability and continuity in the AGC for these cases to be completed successfully. Bringing an outsider now to head the AGC would result in delays or the new AG needing to act on matters alien to him. Or he may act in a manner that turns the AGC staff against him. 

As such, I believe that the new AG must be appointed from within so that the work of the AGC continues without any interruption and without affecting the morale of the many staff of the chambers.

They don’t have to look far to find such a person from within the AGC. The solicitor-general (SG) is someone who fits the bill perfectly.

In fact section 40A of the 11th schedule of the Federal Constitution tells us that the solicitor-general will be a perfect fit.

Section 40A gives the solicitor-general the power to perform any of the duties and powers of the attorney-general.

In full, it states:

“Solicitor-General to exercise powers of Attorney-General –

(1) Unless in any written law it is otherwise expressly provided, the Solicitor-General may perform any of the duties and may exercise any of the powers of the Attorney-General.

(2) Where the Yang di-Pertuan Agong or any other person has lawfully delegated his powers to the Attorney-General such delegation shall, unless expressly provided be deemed to be delegation of powers to both the Attorney-General and the Solicitor-General.”

Further, section 376(2) of the Criminal Procedure Code stipulates:

“The Solicitor-General shall have all powers of a Deputy Public Prosecutor and shall act as a Public Prosecutor in case of the absence or inability to act of the Attorney-General.”

Based on the provisions of the Federal Constitution and Criminal Procedure Code, it is abundantly clear that the SG exercises the powers of the AG in his absence or inability to act automatically by operation of law without there being a need for a formal letter of appointment. This makes the SG the most qualified candidate to be considered for the appointment as AG.

It is an important position and should be given its due recognition by PM Anwar and the government of the day. It will make a mockery to sidestep these provisions which are meant to ensure effective transition, continuity, and stability – all there for purposes of ensuring succession planning! – December 18, 2022.

* Ali Rahman b Firdouse reads The Malaysian Insight.

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.