IT is best for the government to appoint a senior public officer or a lawyer as the new attorney-general (AG), an anti-death penalty group said. 

Malaysians Against Death Penalty and Torture (Madpet) co-founder Charles Hector Fernandez said a serving judge must never be considered for the post to prevent negative public perception of the judiciary. 

“They should remain judges until retirement,” he said in a statement. 

He added judges who have just retired should also not fill the position. https://www.themalaysianinsight.com/s/419646

If that is so, Madpet should be as concerned over cases where the prosecution is led by a senior deputy public prosecutor (DPP) who is a former Federal Court judge. Should this not raise questions on the independence of the judiciary and the judges themselves?

In a recent article (2019) by Jed Handelsman Shugerman, professor of law at the Fordham University School of Law in New York, the author shared his research on the history of the office of the attorney-general of the United States.

According to the author, he went through the list of every attorney-general who had served at least one year, plus a few more with shorter but significant tenures, and checked their backgrounds to get a basic understanding of how they rose to the office.

“Three categories emerged. First was the politico, a major elected official with established political clout, often as a sitting member of Congress …. (T)he salient feature is that this Attorney General had his or her independent electoral base of power and an already-established name.

“Second was the professional, a lawyer who had established himself or herself in private practice, government service, or in the judiciary. Sometimes they are veterans from the (Department of Justice) or get promoted from within the DOJ. If they had held elected office, it was brief or less prominent. They brought a reputation for skill to the office more than a reputation for power.

“The third category was the insider, a friend or direct supporter of the president who (rose] to power substantially because of his connection to the president or the president’s political faction. I sometimes use the word ‘crony- to describe these attorneys general, but that label is sometimes too pejorative.

“Once in office, some of these insider attorneys general would turn out to be more professional and independent, while others are simply fixers who get embroiled in scandal.”

In short, the author identified three categories or models of the US AG: the politico; the professional; and the insider. The politico and the professional dominate from the late eighteenth through the nineteenth century. The insider model pops up under Presidents Andrew Jackson (1829 to 1837) and Ulysses Grant (1869–1877). The last few decades, however, have been a mix of all three. (See Jed Handelsman Shugerman, “A Historical Sketch of the U.S Attorney General as a Case for Structural Independence 87 Fordham L. Rev. 1965 [2019]). 

Despite their backgrounds, the author was quick to note that there were AGs who were “notably judicious and professional in their tenure in the office”. There were also AGs who famously “stood up to the presidents they served in defence of legal principles”.

Perhaps, a similar research could be done of the Malaysian AGs. The above research suggests that appointing an AG who “is outside of the judiciary” does not per se ensure the independence of the office not of the judiciary.

Shugerman proposed a “structural reform” in the appointment of the US AG to restore professionalism, independence, and the impartial rule of law. According to him, the “current structures and norms of partisanship, self-dealing, and cronyism are not conducive to faithful execution” of the office of the AG.

If the same is true here, then it is structural reform that is needed. – December 27, 2022.

* Hafiz Hassan 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.