BY GURDIAL SINGH NIJAR
(Deputy President, HAKAM)
AS THE saying goes, the greater the storm, the brighter the rainbow. Smiling colours beamed when the Yang di-Pertuan Agong finally consented to the appointment of lawyer Tommy Thomas as the 10th attorney-general of Malaysia/Federation of Malaya. After a cliffhanger thriller to the finish – as royalty prevaricated in the face of the prime minister’s insistence that the government’s choice was not negotiable.
The short announcement on behalf of His Majesty alluded to the King’s “disappointment and worry about inaccurate and negative media reports of late which could threaten peace and harmony in the country”. The country – barely over the euphoria of a change of government – heaved a welcome sigh of relief. A potential constitutional crisis saved from the brink.
Are there lessons to be drawn from this episode? Several, I believe.
First, the appointment issue, unwittingly, drew an open, transparent and intensely lively public discussion. Views were vigorously parleyed for and against Tommy’s appointment by the media. Sometimes a little overboard, with unsupportable allegations. But entirely manageable with no threat of prosecution under the notorious Anti-Fake News law. Much like the open congressional hearings for key appointments in the US – sans the proposed appointee’s response. A certain plus for the open and transparent facet of the rule of law. If such scrutiny had accompanied the outgoing AG’s appointment, things may have turned out differently!
Second, a reiteration of the role of a constitutional monarch. A monarch is head of state. The PM is head of government. The government rules. And it is the government’s absolute right to name any person to head its supportive arms. Else the governance structure could crumble.
Third, the recognition of the undoubted sanctity of the explicit mandate of the Federal Constitution. The applicable provisions of the constitution are crystal clear. The Yang di-Pertuan Agong shall appoint the AG on the advice of the PM: Article 145(1). The King must act in accordance with the advice of the Cabinet (read: PM) in exercising his functions under the Constitution: Article 40(1). And “the Yang di-Pertuan Agong shall accept and act in accordance with such advice”: Article 40(1A). Intelligible provisions. Admitting no possible alternative interpretation.
Fourth, the recognition of a delink between fulfilling the functions of high office and ethnicity. That is, race or religion of an office-bearer is extraneous to his or her performance. And irrelevant to the oath to uphold the Federal Constitution. And its facets – the role of the Yang di-Pertuan Agong in safeguarding the special position of the Malays and natives of East Malaysia and the legitimate interests of other communities; the role of royalty on Islam; securing freedom of religion and other fundamental liberties; upholding the national language – to name a critical few.
Fifth, what ultimately matters is the integrity of the office-holder. Recall that a trust deficit plagued the former AG’s functioning – despite his “acceptable” ethnic and religious credentials.
Sixth, it is to the PM’s credit that he nominated Tommy despite his earlier (and perhaps, frank) critique of the PM’s past record. In short, the present administration values the qualifications of a public official nominee above any personal wounded pride.
Finally, it is heartening that largely, those who staunchly opposed Tommy’s appointment, now publicly accept it. One chat group’s exhortation that the new AG “act constitutionally, fairly and impartially by taking into account the historic aspect and intention of each legislation, especially in laws involving Muslims and related institutions” – perhaps a wee bit superfluous given his impeccable credentials, his abundant writings on upholding these fundamental underpinnings of the Constitution; and his integrity. For which reason he was no doubt the chosen one.
One last point. The Pakatan Harapan manifesto pledged to separate the office of the public prosecutor from that of the AG as the government’s adviser. Presently the roles are combined under the Federal Constitution, reinforced by the Criminal Procedure Code. This raises a potential conflict of interest; manifested by the outgoing AG Apandi exonerating Najib of any wrongdoing.
Separating the roles requires an amendment to the Constitution by a two-thirds parliamentary majority.
In the meantime, the AG must function as is. To be sure, the new AG is mindful of the need for a separation of the roles. He recently argued this conflict issue in court. And as long ago as in a 1983 article in the Bar’s journal, Insaf, (reproduced in his book, Abuse of Power), he wrote: “The power of the Attorney General has increased since Merdeka. It is increasing and ought to be diminished. Immediate steps ought to be taken … to reduce his powers so that the doctrine of the separation of powers is restored to its proper place in the Constitution”.
Perhaps, in the interim, there can be instituted a de facto separation practice to reduce the gap between the reality and the manifesto promise.
Gurdial is a former law professor and currently a legal consultant as well as Deputy President of HAKAM.