• K. Siladass, June 11, 2018.

Hardly a month had passed since Pakatan Harapan took over Putrajaya and it is already facing problems that have been left behind by the previous government. One problem is the Attorney-General Tan Sri Apandi Ali, who was handpicked by the former Prime Minister Dato Seri Najib Razak. It has now been revealed that the former Attorney-General Tan Sri Gani Patail was asked to leave on a weak ground that he was unwell. It is now reported that Gani Patail had in fact prepared the charge sheet to prosecute the then serving Prime Minister Najib Razak for a criminal offence. That was the bravest thing to do. Gani Patail would not have moved to charge Najib if there was no evidence to do so. However, Gani Patail was in fact sacked – constructive dismissal.

Apandi was appointed as the Attorney-General by Najib. When the whole world recognized the scandalous corrupt Najib, Apandi alone could not see the dark side of Najib.

The present government under the leadership of Tun Dr. Mahathir made it very clear from the time it took over the Federal government that, it has no confidence in Apandi as Attorney-General, and he was asked to go on leave.

A new Attorney-General has to be appointed and it is reported that the Prime Minister has submitted the name of Tommy Thomas, an eminent lawyer in private practice. The Yang di-Pertuan Agong has yet to act on the advice of the Prime Minister or is said have some reservations because Tommy Thomas is a non-Malay and a non-Muslim. If this is the true reason given by the Yang di-Pertuan Agong, it is indeed shocking. Hard to believe and every Malaysian hopes that this is not true.

It is important to remember that before and for a short time after independence the office of the Attorney-General’s chamber was headed by non-Malays and non-Muslims. They were in fact Christians. Athi Nahappan, a Hindu, was appointed as the Attorney-General. As far as the appointment of the Attorney-General is concerned the Prime Minister makes the selection and he advises the Yang di-Pertuan Agong to appoint the person he names as the Attorney-General.

Article 145(1) of the Federal Constitution reads as follows:

“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.” (emphasis mine)

What are the requirements the Yang di-Pertuan Agong has to satisfy himself? Is the person submitted for the office of the Attorney-General qualified to be a judge of the Federal Court? That is the only condition the Yang di-Pertuan Agong needs to satisfy himself.

Article 123 of the Federal Constitution spells out the qualification of a person for the appointment as a judge of the Federal Court. It reads:

“A person is qualified for appointment as a judge of the Supreme Court if –

(a) he is a citizen; and

(b) he has been an advocate of the Supreme Court (now High Court) or a member of the judicial and legal service of the Federation for a period not less than ten years, or has been the one for part and the other for the remainder of that period.”.

It could, therefore be seen that the appointment of the Chief Justice of the Federal Court, the President of the Court of Appeal and Chief Justice of the High Court and the other judges of the Federal Court, of the Court of Appeal, and of the High Court are made by the Yang di-Pertuan Agong acting on the advice of the Prime Minister after consulting the Conference of Rulers.

In so far as the appointment of judges, other than the Chief Justice of the Federal Court, the Prime Minister shall consult the Chief Justice.

What is the meaning of all these constitutional provisions?

Before advising the Yang di-Pertuan Agong on the appointment of the judges to the Federal Court, to the Court of Appeal and to the High Court, the Prime Minister must consult the Chief Justice. And the Yang di-Pertuan Agong shall make the appointments after consulting the Conference of Rulers. The consultation with the Rulers only takes place when judges are appointed.

Thus, the question arises whether the consent of the Rulers is needed when the Prime Minister acts under Article 145 of the Constitution and the answer is that such a necessity does not arise, and it is not provided for in the Constitution.

Further, under Article 145(1) the Yang di-Pertuan Agong retains no discretion on the appointment of the Attorney-General because the Prime Minister advice is final and unchallengeable. In the circumstances, it would be totally unconstitutional for the Yang di-Pertuan Agong to require the Prime Minister to change the nominee. It had never happened before, and it should not happen now.

It was also reported that the Yang di-Pertuan Agong wanted an Attorney-General who is a Muslim so that he could advise on Syariah matters.

Article 145(3) of the Constitution disables the Attorney-General from the proceedings before a Syariah Court. Therefore, this argument is without any constitutional basis, and it would be prudent not to introduce elements that are not in the constitution.

In conclusion, it must be pointed out that the Yang di-Pertuan Agong and the Malay Rulers, must not forget that, their role is a very unique one, in the sense, notwithstanding their allegiance to Islam they must never forget, the existence of other religions’ right protected by the constitution. The Yang di-Pertuan Agong and the Rulers are symbols of unity and they should not be seen to treading a course or cause that may trigger misunderstandings. They must always remain faithful to their oath under the constitution. And they must never depart from the fact that they derive their powers from the constitution, and in so far as the states are concerned, the source of their power is the respective state constitutions with such modifications but always subject to the Federal Constitution.

The most important thing that must be borne in mind is that Malaysians have on 9th of May finally decided what they want and what they expect from the new Federal Government. The Yang di-Pertuan Agong and the Rulers have a duty to respect the people’s aspirations. As symbols of unity, they should preserve the uniqueness, they should not give the slightest indication which may be seen as giving credit to divisive notion.

Dated: 5/6/2018