Ok the issue has become of national interest. And rightfully so.
Today in The Star my good friend Dato Wong Chun Wai has written an article about the matter, albeit slightly erroneously with regard to the mention of my name. (Bro Chun Wai, I lost my old phone and your number as well. Kalau senang, would appreciate a call from you.)
Here is Chun Wai's piece, truncated. For brevity, my comments in blue are squeezed in between :
https://www.thestar.com.my/news/nation/2018/06/03/hiccup-to-choice-of-new-ag-king-prefers-a-federal-court-or-court-of-appeal-judge-for-top-job/
proposal by Dr M to appoint senior lawyer Tommy Thomas as AG sparked major disagreement with King.
Essentially, Dr M adamant about replacing Apandi, submitting only Thomas’ name to Sultan Muhammad V.
“King suggested four names to Dr M . .” said one of the sources.
sources also pointed out that King once recommended Thomas to Kelantan govt in a case against Petronas.
but Dr Mahathir rebutted that the Solicitor General can handle that job.
My comments :
The first point that
"As far as I can remember only two previous AGs were Judges before being appointed AG. The two are : 1. Tan Sri Mokhtar Abdullah and 2. Tan Sri Apandi Ali."
So only TWO previous AGs were Judges prior to their appointment as AG. This means other AGs like Tan Sri Ghani Patail, Tan Sri Abu Talib Othman etc were not Judges prior to being appointed AGs.
On the following point, if the King wants an AG who can also advise him on Syariah matters, then it goes without saying that the AG has to be a Muslim. The statement in The Star that :
(Can non Muslims also be deemed as Syariah experts? I believe there was a controversy before where one of the Syariah Courts refused to recognise non Muslim syariah lawyers??)
Palace felt it was not right for blogs to construe the issue as “constitutional crisis”.
“This is just a difference in opinions. The King informed Dr Mahathir that if he really wants someone to prosecute the 1MDB case, he need not make Thomas the AG.
“Thomas could be appointed as a DPP (deputy public prosecutor) just like how it was done with lawyer Tan Sri Muhammad Shafee before this,’’ added the source.
My comments : I dont think an AG is being appointed strictly to prosecute the 1MDB case. Tommy Thomas is known as an expert on Constitutional matters as well. There may be some needed reforms to the institution of the AG's Chambers which may require experise in the Federal Constitution.
1MDB is a simple case of stealing and corruption. I dont think we need someone with super levels of legal expertise to prosecute the 1MDB case. I believe the local DPPs can handle the 1MDB case too.
Just two days ago, prominent pro-Dr Mahathir blogger Syed Akbar Ali wrote on Malaysia Today, saying that there seemed to be serious issues developing between the Government and “another party” over the AG’s appointment.
My comments : Huh ?? Malaysia Today ?? I say Bro Chun Wai, the blog is called OutSyed The Box lah. Apa lah lu? It received over 200,000 hits yesterday. Please correct this error.
Thats all I wish to comment about Wong Chun Wai's article. Here are two other news reports that are to be noted:
Today in The Star my good friend Dato Wong Chun Wai has written an article about the matter, albeit slightly erroneously with regard to the mention of my name. (Bro Chun Wai, I lost my old phone and your number as well. Kalau senang, would appreciate a call from you.)
Here is Chun Wai's piece, truncated. For brevity, my comments in blue are squeezed in between :
https://www.thestar.com.my/news/nation/2018/06/03/hiccup-to-choice-of-new-ag-king-prefers-a-federal-court-or-court-of-appeal-judge-for-top-job/
proposal by Dr M to appoint senior lawyer Tommy Thomas as AG sparked major disagreement with King.
Essentially, Dr M adamant about replacing Apandi, submitting only Thomas’ name to Sultan Muhammad V.
“King suggested four names to Dr M . .” said one of the sources.
- “The King’s argument is that he wants somebody who has been a judge or even a retired judge.
- He does not care whether the AG is an Indian, Chinese or Malay,’’ said the source
- adding that the King demonstrated this when he accepted DAP secretary-general Lim Guan Eng as the Finance Minister.
sources also pointed out that King once recommended Thomas to Kelantan govt in a case against Petronas.
- The King wants an AG who is able to advise him on Syariah matters too
but Dr Mahathir rebutted that the Solicitor General can handle that job.
- “However, King felt that AG as top officer should be the one advising him,’’ said source
My comments :
The first point that
- “The King’s argument is that he wants somebody who has been a judge or even a retired judge.
"As far as I can remember only two previous AGs were Judges before being appointed AG. The two are : 1. Tan Sri Mokhtar Abdullah and 2. Tan Sri Apandi Ali."
So only TWO previous AGs were Judges prior to their appointment as AG. This means other AGs like Tan Sri Ghani Patail, Tan Sri Abu Talib Othman etc were not Judges prior to being appointed AGs.
On the following point, if the King wants an AG who can also advise him on Syariah matters, then it goes without saying that the AG has to be a Muslim. The statement in The Star that :
- He does not care whether the AG is an Indian, Chinese or Malay,’’ said the source
(Can non Muslims also be deemed as Syariah experts? I believe there was a controversy before where one of the Syariah Courts refused to recognise non Muslim syariah lawyers??)
Palace felt it was not right for blogs to construe the issue as “constitutional crisis”.
“This is just a difference in opinions. The King informed Dr Mahathir that if he really wants someone to prosecute the 1MDB case, he need not make Thomas the AG.
“Thomas could be appointed as a DPP (deputy public prosecutor) just like how it was done with lawyer Tan Sri Muhammad Shafee before this,’’ added the source.
My comments : I dont think an AG is being appointed strictly to prosecute the 1MDB case. Tommy Thomas is known as an expert on Constitutional matters as well. There may be some needed reforms to the institution of the AG's Chambers which may require experise in the Federal Constitution.
1MDB is a simple case of stealing and corruption. I dont think we need someone with super levels of legal expertise to prosecute the 1MDB case. I believe the local DPPs can handle the 1MDB case too.
Just two days ago, prominent pro-Dr Mahathir blogger Syed Akbar Ali wrote on Malaysia Today, saying that there seemed to be serious issues developing between the Government and “another party” over the AG’s appointment.
My comments : Huh ?? Malaysia Today ?? I say Bro Chun Wai, the blog is called OutSyed The Box lah. Apa lah lu? It received over 200,000 hits yesterday. Please correct this error.
Thats all I wish to comment about Wong Chun Wai's article. Here are two other news reports that are to be noted:
"Article 145(1) of the Federal Constitution states that “the YDPA 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”.
JUNE 2 — Malaysian Insight carried story YDPA not acted on and has asked Tun M to reconsider his choice of renowned lawyer, Tommy Thomas, as AG
Instead messages relayed from palace, that PH drop Thomas
Dr M asked to consider several candidates
Malaysian Insight understands other Malay rulers suppor King’s position
adamant that A-G should be Malay/Muslim
Dr M asked to consider several candidates
Malaysian Insight understands other Malay rulers suppor King’s position
adamant that A-G should be Malay/Muslim
Regardless of accuracy of such reports, important Mians recognise YDPA’s role
in appointment of key offices prescribed by Constitution — including AG.
in appointment of key offices prescribed by Constitution — including AG.
King or Queen acts as head of state — strictly within parameters of constitution
monarch not vested with direct executive powers to govern
monarch acts as ceremonial symbol of unity
monarch not vested with direct executive powers to govern
monarch acts as ceremonial symbol of unity
What does our Constitution say about the appointment of AG?
Article 145(1) of the Federal Constitution states that “the YDPA 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”.
Nonetheless, because we are a constitutional monarch, Article 40(1A) of the Federal Constitution states that the YDPA in such circumstances must accept and act in accordance with the advice of the Prime Minister. There is no room for any exercise of discretion.
In Datuk Seri Anwar bin Ibrahim v Perdana Menteri Malaysia & Anor [2010] 3 MLJ 174, our apex court considered Article 40(1A) and held:
- “The Yang di-Pertuan Agong upon being advised by the Prime Minister on the choice of his candidates must act on such advice.
- His Majesty does not have any discretion to reject or question the discretion of the Prime Minister
- Reference to the Yang di-Pertuan Agong in the said article of the FC is only a formality by virtue of His Majesty being the constitutional monarch.
- Such a clear demarcation of power and roles between the Prime Minister and the Yang di-Pertuan Agong in matters of appointment and revocation of ministerial posts is imperative in order to realise the role of collective responsibility of the Cabinet Ministers.”
By extension, the Council of Rulers also does not need to be consulted beforehand or have a say in the appointment of AG.
There is further no constitutional requirement that the AG must be of a particular race or professes any specific faith.
Hence, as long as the Prime Minister advices to appoint as AG a candidate whom the Prime Minister himself believes is qualified to be a judge of the Federal Court, the YDPA is bound to act on such advice.
Otherwise, the very core of our nation’s governing blueprint as a constitutional monarchy will be shattered.
It will be a dangerous precedent if the clear demarcation of roles between the monarchy and Executive is blurred.
Be it the common man or the royal palaces — the Federal Constitution must always be the guiding scripture for all on how we function as a democratic nation.
It will be a dangerous precedent if the clear demarcation of roles between the monarchy and Executive is blurred.
Be it the common man or the royal palaces — the Federal Constitution must always be the guiding scripture for all on how we function as a democratic nation.
* Lim Wei Jiet is an Advocate and Solicitor of the High Court of Malaya and Deputy Chairperson of the Bar Council’s Constitutional Law Committee
* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.
Here is another legal expert with his views on the Federal Constitution :
https://www.themalaysianinsight.com/s/51978
YDPA must appoint new AG according to PM's advice, constitutional lawyers said.
"The King must act on the advice of the prime minister. There is no choice.
"If he doesn't, for ill health or other reasons, then the Deputy Yang di-Pertuan Agong (Sultan Nazrin Muizzuddin Shah) can step in," constitutional lawyer and former law expert at Universiti Malaya Dr Gurdial Singh Nijar told The Malaysian Insight.
Dr Mahathir wants constitutional expert Tommy Thomas.
The decision has backing of all four parties in Pakatan Harapan govt.
appointment of respected legal name would send right signal to Msians and rest of the world that new govt serious about reforming country's institutions
understood that Palace, other Malay rulers want Dr M to recommend Malay-Muslim
Another constitutional lawyer Syahredzan Johan said the King and the Council of Rulers have no constitutional basis to interfere in the appointment.
"The King does not have the discretion to choose AG.
He must do so at the advice of the prime minister.
"The Council of Rulers have an even lesser role.
The King does not need to consult the Council of Rulers," said Syahredzan.
Federal Constitution did not stipulate that AG must come from specific ethnic or religious group.
only requirement is that the person must be qualified to be a Federal Court judge," he said.
To qualify as a Federal Court judge, a person must be a Malaysian and who has served at least for a decade as a lawyer or a member of the judicial and legal service, or both, according to Article 123 of the Federal Constitution, he said.
My comments :
1. If the Law is a bad law and the will of the people is good and strong, then the will of the people will prevail and overcome the bad laws.
2. If the Law is a good law but the will of the people is misled or mistaken then the people who have been misled will possibly prevail and ignore a good Law. The people will suffer for being misled.
3. If the Law is a good law and the will of the people is also good and strong, that will be a very powerful force indeed. Then both the good of the people and the good Laws will prevail.
These points have to be noted.
Here is another legal expert with his views on the Federal Constitution :
https://www.themalaysianinsight.com/s/51978
YDPA must appoint new AG according to PM's advice, constitutional lawyers said.
"The King must act on the advice of the prime minister. There is no choice.
"If he doesn't, for ill health or other reasons, then the Deputy Yang di-Pertuan Agong (Sultan Nazrin Muizzuddin Shah) can step in," constitutional lawyer and former law expert at Universiti Malaya Dr Gurdial Singh Nijar told The Malaysian Insight.
Dr Mahathir wants constitutional expert Tommy Thomas.
The decision has backing of all four parties in Pakatan Harapan govt.
appointment of respected legal name would send right signal to Msians and rest of the world that new govt serious about reforming country's institutions
understood that Palace, other Malay rulers want Dr M to recommend Malay-Muslim
Another constitutional lawyer Syahredzan Johan said the King and the Council of Rulers have no constitutional basis to interfere in the appointment.
"The King does not have the discretion to choose AG.
He must do so at the advice of the prime minister.
"The Council of Rulers have an even lesser role.
The King does not need to consult the Council of Rulers," said Syahredzan.
Federal Constitution did not stipulate that AG must come from specific ethnic or religious group.
only requirement is that the person must be qualified to be a Federal Court judge," he said.
To qualify as a Federal Court judge, a person must be a Malaysian and who has served at least for a decade as a lawyer or a member of the judicial and legal service, or both, according to Article 123 of the Federal Constitution, he said.
My comments :
1. If the Law is a bad law and the will of the people is good and strong, then the will of the people will prevail and overcome the bad laws.
2. If the Law is a good law but the will of the people is misled or mistaken then the people who have been misled will possibly prevail and ignore a good Law. The people will suffer for being misled.
3. If the Law is a good law and the will of the people is also good and strong, that will be a very powerful force indeed. Then both the good of the people and the good Laws will prevail.
These points have to be noted.
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