Bersih 2.0: Uphold Federal Constitution in appointment of attorney general

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File photo: Tommy Thomas (second from right)

The Coalition for Clean and Fair Elections (Bersih 2.0) welcomes the candidacy of Tommy Thomas as attorney general and commends the new Pakatan Harapan government for putting forward a highly competent and credible candidate for the position.

We are however gravely concerned with the impasse between the prime minister and the Yang DiPertuan Agong on the matter, allegedly due to the fact that Tommy Thomas is not a Malay or Muslim.

Bersih 2.0 supports the candidacy of Tommy Thomas on the following grounds:

Prime minister’s prerogative to appoint attorney general

The appointment of attorney general is clearly the prime minister’s prerogative under the Federal Constitution. To do otherwise is to undermine the Federal Constitution.

Article 145(1) of the Federal Constitution states clearly that “(t)he Yang di-Pertuan Agong shall, on the advice of the Prime Minister, appoint a person who is qualified to be a judge of the Supreme Court to be the Attorney General for the Federation”.

Article 40a(1) of the Federal Constitution, in no uncertain terms, spells out that “(in) the exercise of his functions under this Constitution or federal law, the Yang di-Pertuan Agong shall act in accordance with the advice of the Cabinet or of a Minister acting under the general authority of the Cabinet, except as otherwise provided by this Constitution”.

There is no provision in the Federal Constitution requiring that the attorney general must be a Malay-Muslim. In fact, there have been non-Muslims appointed as attorney general in the past, namely Thomas Vernoe Alexander Brodie (1955-1959) and Cecil M Sheridan (1959-1963).

Attorney general’s role on Islamic affairs limited

The sanctity of Islam in the constitution is entrenched in the Constitution. Any constitutional changes affecting Islam does not only require a parliamentary two-thirds majority but also the consents of the Malay Rulers, who are guardians of Islam in their respective state.

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The attorney general’s roles are limited mainly to his advice to the government, prosecution of criminals, and leadership of the Attorney General’s Chambers and lower court officers.

To misrepresent the attorney general as an extremely powerful position that can alter the fundamental tenets of our political system like the position of Islam is either ignorant of or questioning the capability of Parliament and the Rulers in exercising their constitutional duty.

Furthermore, Art 145(3) states that the attorney general shall have power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for an offence, other than proceedings before a Sharia court, a native court or a court-martial.

Attorney general’s role in implementing Pakatan Harapan’s manifesto

The new attorney general is believed to be tasked to implement Pakatan Harapan’s promises on pursuing the 1MDB and other scandals as well as institutional reforms including the separation of the Attorney General’s Chambers and the office of public prosecutor, a crucial institutional reform to end conflict of interests and abuse of power.

Tommy Thomas’s extensive knowledge and expertise on constitutional matters is a great asset to leave no stone untouched and to engineer the separation. He will be an ideal independent attorney general until he is replaced by a sitting Member of Parliament after the transformation of the Attorney General’s Chambers is completed in line with the election promise of Pakatan Harapan.

Tommy Thomas’ credentials

Besides his illustrious career in law, Tommy Thomas has also displayed strong commitment in defending social justice for years, including representing Bersih 2.0 on a pro bono basis all the way up to the Federal Court level, when Bersih 2.0 was sued by the government for damaging government properties in the Bersih 2 rally in 2011.

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In fact, Tommy Thomas also represented Parti Islam Se-Malaysia (Pas) in two court cases, namely in the case of Kelantan state government vs Petroliam Nasional Berhad on petroleum royalty in 2014 and the case of Pas and others vs Tan Sri Abdul Aziz Mohd Yusof and others on the fraud related to indelible ink by the Electoral Commission in 2015.

The new Malaysia born out of the historic Malaysian tsunami represents mass support across racial and religious lines in the 2018 general election for a political change. It sent a strong message that Malaysians reject racial and religious politics, which was used to divert and cover up decades of corruption, mismanagement and abuse of power under the Barisan Nasional government.

We should not return to the old path. Bersih 2.0 urges all quarters to discard the racial mindset and embrace the rule of law, good governance, democracy, equality and inclusiveness in this new Malaysia. In particularly, we call on all to respect and uphold the Federal Constitution — the supreme law of the land.

Bersih 2.0 steering committee

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Ong Eu Soon
4 Jun 2018 10.41pm

Our Constitution does not explicitly or implicitly give the Prime Minister the discretion to appoint the Attorney General. The appointment of the Attorney General is the constitutional prerogative of the Yang di-Pertuan Agong on the advice of the Prime Minister. The advice of the Prime Minister cannot be used to usurp the power of Yang di-Pertuan Agong. Bear in mind that our Constitution only allows the Prime Minister to make nominations regarding the appointments of Attorney General. Before the 14th General Election, Malaysians were generally concerned with appointment of Attorney General by the Prime Minister after the dismissal of Abdul Gani Patail with the appointment of Mohamed Apandi Ali as Attorney General. Malaysians strongly felt that there is a need to review Article 145 of the Federal Constitution regarding the appointment of the Attorney General. There is a need to take away the power of appointment from the Prime Minister. The amendment should be as follows: The Yang di-Pertuan Agong shall, on the advice of the Conference of Rulers and consent of Parliament, appoint a person who is qualified to be a judge of the Federal… Read more »