DECEMBER 27 ― I agree with Matilda George that protecting the attorney general (AG)’s independence is important, as it is to prevent political interference in the AG’s decision-making process.
As the writer puts it: “Overall, it is essential to ensure that the AG can carry out their duties independently, by upholding the rule of law and protecting the integrity of the legal system.”
However, it is curious that she should posit that one of the ways to ensure that the AG is independent is to appoint an AG who “is outside of the judiciary.”
According to the writer, “[t]his is one way to ensure independence, where the selection of the attorney-general is made by [sic] persons who do not have any prior experience as a judge. This can help to ensure that the attorney-general is not beholden to any particular judicial [sic].”
The writer is in agreement with a rights group which has advised the government against appointing a sitting judge as the AG in order to preserve the independence of the judiciary.
Charles Hector of the Malaysians Against Death Penalty and Torture (Madpet) said that such appointment raised questions on the independence of the judiciary and the judges themselves.
If that is so, Madpet should be as concerned as the accused in the case 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, Fordham University School of Law, New York, the learned author shared his research on the history of the Office of the Attorney General of the United States (US).
According to the author, he went through the list of every attorney general who 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.
He wrote:
“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] (DoJ) 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: (1) the politico; (2) the professional; and (3) 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 US Attorney General as a Case for Structural Independence 87 Fordham L. Rev. 1965 (2019). Available here.
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. Be that as it may, the above research suggests that appointing an AG who “is outside of the judiciary” does not per se ensure the independence of the office nor of the judiciary.
Professor 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 of the country, then structural reform is what is needed here too.
* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.
