June 5, 2018
End the Constitutional Standoff –Make Tommy Thomas Malaysia’s Attorney-General
by P. Gunasegaram@www.malaysiakini.com
The current constitutional standoff over the appointment of prominent lawyer Tommy Thomas as Attorney-General is totally unnecessary and the concerns over it are utterly misplaced. There is no requirement under the law to appoint a Malay and it is a fallacy to imply that a non-Malay Attorney-General cannot protect the rights of all people including Malays.–P.Gunasegaram
QUESTION TIME | The current constitutional standoff over the appointment of prominent lawyer Tommy Thomas as Attorney-General is totally unnecessary and the concerns over it are utterly misplaced. There is no requirement under the law to appoint a Malay and it is a fallacy to imply that a non-Malay Attorney-General cannot protect the rights of all people including Malays.
Any person who knows the law and who is capable will be able to protect and preserve the rights of all people as provided for in the Federal Constitution and any special privileges granted to the various communities aimed at safeguarding their livelihood and way of life. There are few available who are as qualified for this as Thomas.
As usual, those opposed to Thomas’ appointment have put a racial and religious spin on it which is irrelevant to the question as to whether he is suitable for the position of AG. If there are fears of any interference in the religious courts, there is a specific provision under the constitution.
The King says “Let us make a deal”. Dr Mahathir to the King, “I can be generous. What do you want, King?”–A Parody
Section 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 syariah court, a native court or a court-martial. It’s clear his jurisdiction does not extend to syariah courts.
Here are 10 reasons why Thomas should be accepted for the post of attorney-general when the rulers’ council meets today.
1. The Pakatan Harapan government unanimously picked him for the post, reports say. This is top of the list. According to Section 145 (1) of the Federal Constitution, the Yang di-Pertuan Agong shall, on the advice of the Prime Minister, appoint a person who is qualified to be a judge of the Federal Court to be the Attorney-General for the Federation. That is as clear as can be. It is the Prime Minister who appoints the Attorney-General and the King sanctions the appointment accordingly. If the King has any reservations it is up to him to discuss with the Prime Minister, and if the prime minister stays firm on his choice, then the king needs to act accordingly. That is the law, as Prime Minister Dr Mahathir Mohamad has explained. And he has firmly indicated that he is not changing his mind about the appointment.
2. He is capable. Thomas, who holds an LLB Hons. and an MSc from the London School of Economics, has a reputation for being a very capable and competent lawyer and is highly respected in and out of the legal fraternity.
Here is an extract of his profile: “As a barrister of more than 40 years standing, Thomas has had the privilege of appearing as counsel in landmark cases in various branches of the law in all the courts of Malaysia, including the Privy Council in London, which was Malaysia’s highest court until 1985. Thomas has had more than 150 reported cases and countless unreported cases. He has been singled out consistently and regularly as one of Malaysia’s leading litigation lawyers by independent international publications such as The Asia Pacific Legal 500, Which Lawyer, Who’s Who Legal (The International Who’s Who of Business Lawyers), Commercial Litigation Lawyers of Asia and Chambers Asia.”
3. He is experienced. His forty years covers a lot of ground. His profile says he has acted in ground-breaking high profile litigation involving two state governments in relation to their offshore oil and gas claims. He has also acted for two other state governments in constitutional and judicial review disputes. He has represented regulatory authorities as lead counsel in their complicated civil litigation matters at the apex court. Thomas is regularly consulted by other law firms and appointed senior counsel in their litigation. He often appears as lead counsel for the Malaysian Bar in intricate and controversial cases.
4. He knows the constitution. Much of his cases involve constitutional issues and his interests in the rights of people and organisations has meant that he is up to date with the many changes in the constitution that has taken place over the years. Given the reform agenda of the Harapan government, he will be strongly positioned to give appropriate advice and help initiate legal reform of which there will be many.
5. He knows corporate law. If prosecution of 1MDB offences is to be efficient, thorough, fair, and effective there has to be clear understanding of how the money was embezzled and stolen. Here are his corporate credentials: “In the corporate field, he has appeared in company, liquidation, receivership and insolvency matters. In the commercial sphere, he has acted in banking, hire purchase, contract, intellectual property, sale of goods, wills, trusts and land law cases. Thomas has appeared in complex litigation involving bonds and other sophisticated financial instruments. In public law, Thomas specialises in constitutional and administrative law cases. He has also been very active in statutory interpretation disputes ranging from petroleum, asset management, securities law and local government.” This experience in corporate law is vital to effectively prosecute cases involving 1MDB where transactions are multi-layered and complex.
6. He is smart. Thomas also knows when he is out of his depth and is smart enough to get the help he needs to understand issues better. He grasps things very quickly and his wide interests, as well as a strong reading habit, ensures that little that is important escapes his scrutiny – a very necessary quality for a good Attorney-General. I once read a long article he wrote on the world financial crisis and was quite impressed by the grasp this non-finance professional had on the subject matter.
7. He is independent. Everybody knows that Thomas has an independent, original mind and is not afraid to speak up. More importantly, he is not the type of person who is going to be influenced by anyone, including the person who appointed him, when he decides on his cases. One can be sure that if a person is charged, there is a reason to charge him and if he is not there is a good legal reason for that as well.
8. He can suggest ways how the Attorney General’s post can be kept independent. After having seen the abuse of the attorney general’s position over years and decades, Thomas will have suggestions of how this post can be kept independent. He is the type of person who will want the post to remain independent for eternity.
9. He is fair, fearless, straight and incorruptible all of which are great qualities to have in an A-G which we have lacked terribly in the past few decades.
10. Finally, he cares about the country. We need an attorney general who will care deeply and passionately about the consequences of his actions on the well-being, future and direction of the country and will at all times act in the nation’s best interest but according to the law. We can’t have attorneys- general, of all people, continue to frustrate the rule and application of the law equally to everyone.
I am sure there are other reasons. Personally, in this current environment, I believe there is no better choice than Thomas for Attorney-General but I never thought that the Prime Minister will actually propose him for the post. Now that he has, there is no reason why Thomas should not be appointed forthwith as all “reasons” for not wanting him are extremely frivolous, and should I say, vexatious too.
Disclosure: P Gunasegaram considers Tommy Thomas to be a good friend of his. E-mail: firstname.lastname@example.org
The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.
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