Uphold Federal Constitution in the appointment of AG

The Coalition for Clean and Fair Elections (Bersih) welcomes the candidacy of Tommy Thomas as attorney-general (AG) 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 di-Pertuan Agong on the matter, allegedly due to the fact that Thomas is not a Malay or Muslim.

Bersih supports the candidacy of Thomas on the following grounds:

1. Prime minister’s prerogative to appoint attorney-general

The appointment of AG is clearly a prerogative of the prime minister under the Federal Constitution. To do otherwise is to undermine the Federal Constitution.

Article 145(1) of the Federal Constitution states clearly that “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 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 AG must be a Malay Muslim. In fact, there has been non-Muslim appointed as AG in the past, namely Thomas Vernoe Alexander Brodie (1955-1959) and Cecil M Sheridan (1959-1963).

2. AG’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 states.

AG's roles are limited mainly to his advice to the government, prosecution of criminals, and leadership of the AGC and lower court officers. To misrepresent AG 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 the Parliament and the rulers in exercising their constitutional duty.

Furthermore, Art 145(3) states that the AG 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.

3. AG’s role in implementing Harapan’s Manifesto

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

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 AG until he is replaced by a sitting MP after the transformation of AGC is completed in line with the election promise of Harapan.

4. Credentials of Thomas

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

In fact, Thomas also represented PAS in two court cases, namely in the case of Kelantan state government vs Petroliam Nasional Berhad (Petronas) on petroleum royalty in 2014 and the case of PAS and others vs Abdul Aziz Mohd Yusof and others on the fraud related to indelible ink by the Election Commission in 2015.

The new Malaysia born out of the historic Malaysian tsunami represents mass support across racial and religious lines in the 14th general election for a political change. It sent a strong message that Malaysians rejected racial and religious politics, which was used to divert and cover up decades of corruption, mismanagement and abuse of powers under the BN government.

We should not return to the old path. Bersih urges all quarters to discard 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. - Mkini