Experts: Nothing to bar Dr M from making Thomas the AG

PETALING JAYA: There is nothing in the Federal Constitution that can bar Prime Minister Tun Dr Mahathir Mohamad from making senior lawyer Tommy Thomas the Attorney General, say two leading constitutional experts in the country.

Eminent retired law professor Gurdial Singh Nijar said the Yang di-Pertuan Agong Sultan Muhammad V’s discretion in the matter was only a formality, and it is ultimately up to the government of the day to choose whoever it perceived to be the most qualified person for the job.

“Article 40(1)(a) says that where the King is to act on the advice of the PM ‘he shall accept and act in accordance with such advice’. Thus this leaves no room for discretion. It is a mandatory requirement,” said Nijar, who is popularly known as GS Nijar.

“The consultation requirement is satisfied if there is mere consultation – without more. In other words – the consultation outcome is not binding on the Prime Minister or the government ...” said Nijar.

Unlike the appointment of a judge, he said, there is no requirement in the Constitution for the Prime Minister to consult the Conference of Rulers for the appointment of the AG.

“As a matter of courtesy, (and perhaps conventionally), this may be done on the basis of a provision in the Constitution that allows for the Rulers to act in their discretion on advising on any appointment: Article 38(6)(b).

“Nevertheless the advice is not binding on the government or Prime Minister,” he said.

Nijar’s comments were sought on the impasse between the Government and the King over the proposal to appoint Thomas as AG.

The King reportedly has reservations about the choice because Thomas is not a MalayMuslim.

On whether Malaysia could have a non-Mus- lim AG, Nijar said the nation had done it before.

He said there were famous non-Malay AGs before, like Thomas Vernor Alexander Brodie (1955-1959) and Cecil M. Sheridan (1959-1963) whom the Yang di-Pertuan Agong at the time had no problem appointing.

However, all seven appointments since then have been Malay-Muslims.

“Looking at history, there should not be any objection now,” he added, clarifying a portal’s report that the late Tan Sri Athi Nahappan was also an AG before.

“Athi Nahappan was a law minister not AG. They are not the same. A Law Minister is part of the Cabinet while the AG is not – he is head of AG’s Chambers running with some 1,200 staff members.

“During the time Athi Nahappan was the Law Minister, Abdul Kadir Yusuf was the AG,” said Nijar.

Echoing Nijar’s views is another prominent constitutional law expert, Prof Datuk Dr Shad Saleem Faruqi.

“Nothing in the Constitution bars a non-Malay from holding any post, other than that of the King, the Sultans, posts in the Royal Malay regiment, and if it’s in the state’s constitution, the post of mentri besar,” said Dr Shad.

“Article 145(3) puts any proceedings before the Syariah courts outside the AG’s powers,” added Dr Shad.

“The argument that appointing a non-Muslim AG is unconstitutional is, to say the least, incredible and self-serving,” Dr Shad said when contacted.

“Admittedly the AG must be a versatile person.

“In the present circumstances, the most important quality is that he or she must be committed to constitutionalism and have a thorough grasp of our basic law, the Federal Constitution,” he added.