By Dr C Navin Naidu
An “office of profit” means a position that brings to the person holding it some financial gain, or advantage, or benefit. It may be an office or place of profit if it carries some remuneration, financial advantage, benefit etc.
It’s a term used in a number of national constitutions to refer to executive appointments. But why call it that? Why not “office of responsibility,” or “office of the public trust”.
The term “financial gain”, “advantage”, or “benefit” can have alarming convolutions and connotations especially in the context of politics. Everyone in the public services — shady, culpable, suspicious, or innocent — come under the microscope of how an office of profit to be strictly interpreted to mean salaries and perks within the meaning of financial gain, advantage or benefit.
Article 160 of the Federal Constitution (FC) stipulates that the judiciary, the police, armed forces, attorney general, auditor general, and all the public services enumerated from Article 132 right up to Article 148 FC are offices of profit.
This creates a zone of discomfort when language is often open to chaotic meanings and interpretations. A close and dear friend of mine who happens to be a Native American civil rights lawyer exclaimed, “wow, I love to come and work in Malaysia,” after reading Article 160 FC where office of profit is stipulated, enumerated and explained.
The word “profit” is clearly associated with financial gain, and it cannot be limited to a fixed salary with some perks, he ventured.
So, I asked him if he was suggesting or insinuating that this (admittedly misleading) label encourages corruption, plunder and malversation. He countered with, “why not, the supreme law of the land is very clear, and totally unequivocal, and adamantly unambiguous about it.”
So, in deference to decency and national pride, we both decided that the public trust is sacrosanct, and that men and women who hold public service positions must be people-oriented. But what does the law say about “office of profit”.
In 1964, the Supreme Court of India ruled that the test for determining whether a person holds an office of profit is the test of appointment. Several factors are considered in this determination including factors such as: (i) whether the government is the appointing authority, (ii) whether the government has the power to terminate the appointment, (iii) whether the government determines the remuneration, (iv) what is the source of remuneration, and (v) the power that comes with the position.
Section 44(iv) of the Constitution of Australia provides that a person is incapable of being chosen as a Member of Parliament if he or she holds an “office of profit under the Crown”.
This is also a ground for disqualification from office for existing members and senators under Section 45. There has been considerable uncertainty about what is meant by holding an office of profit under the Crown.
The idea behind the concept of office of profit — which evolved in England — is to preserve the independence of the legislature by keeping the members away from any temptations from the executive that can come in the way of independent discharge of their duties.
It also seeks to enforce the principle of separation of power between the legislative, the judiciary and the executive — a basic feature of the Constitution.
The topic of “offices and places of profit” was debated in the British House of Commons by Sir Dennis Herbert in February 1942, a peculiar and unusual time to debate such matters especially with the ravages of Word World War II.
He agreed that MPs will be disqualified from holding such offices except if there is a limited number of Ministers of the Crown appointed. The second exception, he suggested, was that such offices were “harmless offices of a non-political nature”. Totally strict upper lip!
The language of Article 38(1)(c) FC: Subject to the provisions of this Article, a person is disqualified from being a member of either House of Parliament if he holds an office of profit. This seems to suggest that a Member of the Dewan Rakyat or a Senator cannot hold a position of profit such as a director/chairman of companies be it private or a government-linked company (GLC).
But the FC does notexplain, define, specify, or enumerate what “office of profit” means.
If I decide to stand for elections, I would listen to the people talk first, and seek their views, outlooks and insights before I stand up to talk. I would earnestly listen to each and every one of them in order to translate their expectations as a lawmaker in the legislature.
Why make laws which baffle, startle, frustrate and confuse the people who voted you into office. And I would leave no stone unturned to replace the offending phrase with “office of public trust” through constitutional amendment.
The views expressed are those of the author and do not necessarily reflect the official policy or position of the New Sarawak Tribune.
