THERE is nothing unconstitutional or illegal about lawmakers holding concurrent positions in government-linked companies (GLC) or statutory bodies, said legal experts.

They said the misconception over this issue could be due to a misreading of the federal constitution and the rules and regulations governing the individual GLCs and statutory bodies.

There are two separate issues here, they told The Malaysian Insight.

Under Article 48(1)(c) of the constitution, “a person is disqualified from being a member of either house of parliament if he holds an office of profit”.

Whereas, Article 160 (2) states that “office of profit” means any whole-time office in public services. These include appointments to judicial positions, as the auditor-general, as a member of the Election Commission or any other commission, and any other office which may be declared by act of Parliament to be an office of profit.

Election Commission chairman Azhar Azizan Harun said GLC positions do not fall within the interpretation of office of profit as stated in Article 160 (2), especially when they are not offices in the public services.

He said, as such, it is not an issue for MPs to hold positions in GLCs.

“It is not unconstitutional. The term ‘office for profit’ is defined in Article 160 of the federal constitution to generally mean holding office in public services.

“Office for profit in the federal constitution does not mean any kind of office position like a directorship in a company and such,” Azhar told The Malaysian Insight.

He added that Article 160 is clear in stating that an office of profit meant any whole-time office in any of the public services.

“So, if an MP holds a directorship or a position in a GLC or government agency, he or she is not disqualified from being an MP under the federal constitution,” he said.

The issue of MPs appointed to GLCs and government agencies is dominating the news following Prime Minister Muhyiddin Yassin’s decision to name Perikatan Nasional (PN) backbenchers to these positions.

Muhyiddin has so far appointed 16 MPs to various GLCs, including eight MPs from Barisan Nasional, five from PAS, and three from Gabungan Parti Sarawak (GPS).

These appointments have been criticised by various parties as a form of political reward and patronage, suggesting that Muhyiddin is rewarding them for supporting him as the prime minister in a thin-majority Dewan Rakyat.

Some critics have also said such appointments are unconstitutional as lawmakers are now allowed to take up any office of profit and it causes a conflict of interest with their responsibilities as the people’s representative.

Last month, it was reported that the GLC Reform Group called for an independent and transparent appointments mechanism for the leadership of GLCs.

They said it is crucial to replace the current system where the government can exercise its power to appoint and dismiss heads of GLCs.

Look into GLC regulations

Lawyer Mohamed Haniff Khatri Abdulla said many misunderstood the definition of office for profit in the federal constitution.

“As far as the constitutional definition is concerned, under Article 48, it is only applicable to public services and it must be a whole-time job,” he told The Malaysian Insight.

He also said each of the GLCs also define the status of its position in the respective company regulations to say if it’s office for profit as stated in the federal constitution.

“For example, in the Penang Regional Development Authority (Perda), where I was the former chairman, if you look at the law which governs that agency, it says that the chairman is a person holding office for profit.

“In that case, if I were an MP, I would be disqualified,” he said.

Haniff said an office of profit meant the position brought to the person holding it some financial gain, or advantage, or benefit.

“So, if you are holding such an office, you are holding it for remuneration.

“So, they have to check the regulations in each GLC to see what positions are allowed or not allowed.”

He, however, added that MPs who hold positions in GLCs are not disqualified from their positions.

“The answer to this position is in the constitution itself, where Article 160 states what is an office of profit.”

Ethical dilemmas

Constitutional law expert Shad Saleem Faruqi, meanwhile, was reported as saying that statutory bodies and GLCs should not be brought under the label of “public services” as it would defeat the “decades-old struggle of these entities for restoration of their lawful autonomy”.

“The job of a parliamentarian is not a full-time job and there is no unconstitutionality or illegality of MPs holding concurrent positions in GLCs and statutory bodies,” he said in his column in The Star.

The holding of an office in the private sector would not disqualify an MP, he said.

“The holding of an office in a private business, company or partnership is not a disqualifying factor.

“For example, MPs who are lawyers can continue with their private practice,” he said.

He, however, suggested that it does not mean the appointments of MPs to GLC positions were wise or proper.

He said scholars had for decades lamented the politicisation of the Malaysian economy and the ethical dilemmas, conflicts of interest and lack of good governance in entities headed by politicians. – June 5, 2020.