Malaysia needs AG to see reforms through

THE one officer that a country and government intent on reform cannot do without is the Attorney General.

The overwhelming support for Pakatan Harapan in the 14th General Election indicated how much the voters wanted the old regime out and believed in the election promises of the then Opposition. If Pakatan does not fulfil its promises, it failed on its own account and not because its attempts were hamstrung even before it could get off the starting block.

One of the first things Prime Minister Tun Dr Mahathir Mohamad did was to ask Tan Sri Mohamed Apandi Ali, who served as AG in the previous administration, to go on leave.

Since then, Dr Mahathir has written to the Yang diPertuan Agong requesting the King remove Apandi as AG and replace him with Tommy Thomas, a senior lawyer and constitutional expert.

However, Thomas’ appointment is at an impasse. Quoting a source, Sunday Star reported yesterday that, among other reasons, the King wanted more names to choose from.

Let’s look at this pragmatically. What Malaysia needs of its AG at this point is someone who is independent, knowledgeable and a constitutional law expert. We need someone with a strong public law background, who will act fearlessly in the pursuit of the rule of law.

He or she must be a person of unquestionable integrity, say several legal experts.

An AG’s primary job, in all jurisdictions, is to advise the Government of the day. The AG’s advice is critical because reforms must be founded on constitutional principles and laws that meet the stringent requirements of the rule of law.

Moreover, as the guardian of public interest, experts say the AG must also advise against measures that are expedient or populist and that could cause longterm damage to Malaysia.

Unlike our previous career AGs from Tan Sri Abu Talib Othman onwards, Thomas has not worked in the public service. Would that be a stumbling block?

The legal experts don’t reckon so. They argue that he just needs a good team to advise him on the inner workings of the public service and he will be up to speed in no time.

And as far as the Federal Constitution goes, there are no impediments to his appointment, being a nonMuslim.

“We must be careful not to read into the purported qualifying factors that are discriminatory, irrelevant and arbitrary. When we do so, we violate the Constitution,” cautions a former Malaysian Bar president.

As for the question of who could advise the King or the Conference of Rulers on syariah matters, a senior constitutional lawyer points out that there is a high level syariah officer in the AG’s Chambers.

While the AG does advise the Conference of Rulers by convention, this function can also be undertaken by the Solicitor General.

But is two years long enough for Thomas or anyone else to make a good start on the reforms?

“It is long enough if institutional reforms are the primary objective,” say legal observers.

“With the right AG it should be enough time so long as the AG’s client, the Government, accepts and acts on the good advice of the AG.” Is Thomas the best candidate for the job? Thomas satisfies almost all the criteria for a wish list AG. He will be driven by principles, according to experts and several lawyers who have appeared with him and against him in court.

There are some who are strongly opposed to him and they cite his 2016 books Anything But the Law and Abuse of Power where he challenged the decisions of civil courts that passed jurisdiction to the Syariah courts in cases of conflict between the civil and syariah laws, among others, as reasons for his unsuitability.

Thomas has not always been a supporter of Dr Mahathir, going so far as to call him authoritarian.

However, the leadup to the 14th General Election has seen many, who would not be caught dead together, band together in the name of reform.

One academic reminded that at the International Bar Association’s AsiaPacific Regional Forum Conference in Kuala Lumpur in 2012, Thomas had said: “The darkest days were in the authoritarian leadership of our 4th prime minister, Dr Mahathir, who ruled for 22 years.”