The Attorney-General is right not to represent the Election Commission
22 June 2018
Lawyers for Liberty welcomes the announcement by the Attorney-General (AG) that his Chambers (AGC) will no longer represent the Election Commission (EC) in election petition cases.
The previous practice of the EC obtaining legal representation from the AG, who acts as the chief legal adviser to the government, is untenable and runs contrary to the doctrine of separation of powers and the essential role that the EC must enjoy public confidence. As an independent body established by the Federal Constitution, the EC must at all times act or be seen to act independently, fairly and free from bias.
In the run-up to GE14, the controversial re-delineation report submitted by the EC triggered an unprecedented uproar amongst the then-Pakatan Harapan opposition, civil society and the wider public. Blatant instances of gerrymandering and malapportionment in favour of the Barisan Nasional government triggered multiple legal challenges by dissatisfied stakeholders including voters, MPs, local councils and even the Selangor state, all of which were unsuccessful. Throughout all of these legal challenges, the AGC provided legal representation for the EC, thus reinforcing the image that the commission served only to further the interest of the incumbent BN government.
Should previous practice continue, the AGC would have been called upon to act as counsel for the EC in election petitions filed by PH candidates, causing a severe conflict of interest. Likewise, if election petitions were filed by BN or other opposition candidates, it could be argued that the AGC would be biased due to their political affiliation with the government of the day.
To rebuild our democracy, public confidence and trust must be restored in all our public institutions including the EC. The public must be able to believe that the body responsible for administrating elections is above partisan politics, and with the AG a political appointee of the ruling government, it would be prudent for the EC to seek legal representation from private lawyers.
This move to ensure the EC’s independence will reassure the electorate that the new government and the EC are not bedfellows, and that there will not be a repeat of the many transgressions seen under the previous BN administration.
We fully support the AG’s move to pre-emptively safeguard the independence of the EC, and for addressing this issue before any matters have arisen in the courts post GE14.
Lawyers for Liberty