Course of action for EC cases

I WRITE with regard to the recently announced decision of the new Attorney General, Tommy Thomas, that legal officers from the Attorney General’s Chambers (AGC) will not represent any party, including the Election Commission (EC), in the upcoming election petition cases relating to the 14th General Election (GE14). This is a departure from the long-standing practice of legal officers from the AGC acting for the EC in such cases.

In the interest of fair play and vindicating the rule of law, it is necessary for the AG or alternatively the Government to clarify whether this announcement will result in the EC going unrepresented in the upcoming election petition cases. There should not be a situation where these cases are decided without the EC’s arguments being properly ventilated and addressed, as this would be contrary to the fundamental legal maxim of audi alteram partem or “hear the other side (before deciding a case)”.

In particular, the AG or Finance Ministry must clarify whether sufficient allocations have been made available to the EC to engage legal representation from the Bar – the course of action apparently directed by the AG when making his announcement. If no such allocations exists, where will the EC obtain resources to engage its legal representation, and will the Treasury now be providing these funds in due course?

At present, there also appears to be some public uncertainty, not least on the part of former Chief Justice Tun Abdul Hamid Mohamad, over the AG’s position that continued representation of the EC by the AGC would result in a conflict of interest. In his public blog post, the retired CJ even described it as “unfounded imagination” on the part of the AG.

In fact, the AG’s concerns are well founded and arise directly from the unprecedented transfer of federal power that took place after GE14. In representing the EC in election petition cases, legal officers from the AGC are likely to be called upon to defend positions adverse to the current Pakatan Harapan government, which are situations where Barisan Nasional candidates won or the Pakatan candidate was disqualified (the latter occurred in at least two constituencies).

As the AG, who is a direct nominee of the Pakatan government, is also the ultimate boss of all legal officers in the AGC, there would be an inescapable conflict of interest for the legal officers in such cases, who would effectively be required to argue against the interests of those who appointed their boss.

Any lapse, misjudgement or adverse outcome encountered by the legal officers in these cases – however innocuous in reality – would give rise to the perception that their integrity had been com- promised. This is not to cast doubt on the professionalism of the highly qualified legal officers at the AGC, but it is a fundamental maxim of law that “justice must not only be done but be seen to be done”.

In light of these competing concerns, I suggest that an independent special counsel be appointed, preferably on a pro bono basis, from among the ranks of retired judges or retired senior officers of the AGC to have control over and direction for all election petition cases involving the EC. He or she should then be supported by a team of legal officers seconded temporarily from the AGC. The problem of conflict of interest would be overcome by the defence that they were acting, for the purpose of the election petition cases, under the direction of the independent special counsel.

The EC can thereby continue to receive legal representation for the upcoming election petition cases without the legal officers involved becoming tainted by the perception of conflict of interest, and without incurring additional expenditure on the part of the EC or the Treasury.

It is well known that prior to winning federal power in GE14, certain individuals in the Pakatan leadership had expressed strong animosity towards the EC. Events having taken their course, it is important that the new government and its nominee, the AG, should not now be seen as deliberately victimising the EC by the abrupt withdrawal of legal representation, especially if there is no available funding for the EC to engage alternative representation.

The upcoming election petition cases must be decided with strict regard to the applicable law and after having heard relevant arguments from all sides, including the EC. The rule of law demands no less.

In the longer run, this scenario highlights the wider problem of having a politically appointed AG who is vested with very broad powers and duties vis-à-vis the federal government. When there is a transfer of power, problems can arise regarding the duties of a new AG towards vestiges of the former administration, such as actions taken by the EC before the current government came to power.

As Malaysia transitions towards a genuine two-party political system, addressing such unprecedented questions is inevitable. It is therefore essential that the reform of the AG’s office as proposed in the Pakatan manifesto, including the hiving-off of certain functions which should be exercised independently, be undertaken as soon as possible.

WILSON TAY TZE VERN PhD Candidate Faculty of Law National University of Singapore