Appointment of Attorney General

by K.Siladass

Although the appointment of Tommy Thomas as Attorney General is no longer an issue, it has left behind a plethora of questions unanswered and it cannot be said that there has been a finality on the issue. The questions that need to be addressed are:-

–       First of all, what is the legal effect of Article 145(1) of the Federal Constitution?

–       Secondly, is the selection of the candidate by the Prime Minister final?

–       Thirdly, can the Yang di-Pertuan Agong refuse to accept the advice of the Prime Minister? or, alternatively, does Article 145 of the Federal Constitution allow the Yang di-Pertuan Agong to withhold the appointment of a candidate advised by the Prime Minister? In other words, has the Yang Di-Pertuan Agong discretion in the appointment of the Attorney General?

–       Fourthly, can the Yang di-Pertuan Agong refuse the appointment on grounds of race or religion or both?

–       Can the conference of Rulers be called upon to mediate or advice the Yang di-Pertuan Agong if there has arisen some stalemate in the appointment of the AttorneyGeneral?

These are the vital questions and it cannot be ruled out that similar questions would not surface in the future.Since a non-Malay and non-Muslim Tommy Thomas has been appointed as the Attorney General has the issue of non-Malay or non-Muslim been put to rest?

We are not sure the basis upon which the Yang Di-Pertuan Agong finally agreed to appoint Tommy Thomas as the Attorney General advised by the Prime Minister Tun Dr. Mahathir Mohammad. The explanations given so far do not seem to be reasonable, and intelligible. Looking at the constitutional provisions, the safest course would be that the effect of Article 145 has been accepted without adding any condition, because if there is room for condition or conditions, then that could defeat the spirit of Article 145.

Dealing with the actual effect of Article 145 it could be deduced that the Yang di-Pertuan Agong has to appoint the person submitted by the Prime Minister as the AttorneyGeneral. There are no two ways about it: any other interpretation will render Article 145(1) meaningless.

As to who should be the AttorneyGeneral, it is for the Prime Minister to decide. Article 145 does not suggest any formula for the Prime Minister’s choice, except that the proposed candidate should be qualified as stated in Article 123 of the Constitution. The Yang di-Pertuan Agong should satisfy himself that Article 123 had been strictly complied with. It is only when there is non-compliance with Article 123, the Yang di-Pertuan Agong could decline making the appointment.

Any attempt questioning the Prime Minister's choice, will tantamount to a challenge, meaning, the Yang di-Pertuan Agong does not agree with the Prime Minister's advice. In this context, it must be emphasized that the Yang di-Pertuan Agong has not any discretion in the selection of the AttorneyGeneral as it is within the power of the Prime Minister.

The rational behind this is very clear and sound, and that is the Prime Minister will be fully aware of the problems the country is facing and the remedies that are needed. In the circumstances laws have to be made to cater urgent needs the country in facing. The Prime Minister is the best person who understands the urgency of the needs, and the necessity of an AttorneyGeneral who would be capable to meet the challenges arising from time to time.

Once the Prime Minister has advised the Yang di-Pertuan Agong, it is the duty of the latter to make the appointment. The Yang di-Pertuan Agong being a symbol of unity cannot be heard, or seen, to suggest anything along racial and religious lines, for such an attitude would tarnish the sacred office of the Yang di-PertuanAgong.

The appointment of the AttorneyGeneral is a matter between the Prime Minister and the Yang di-Pertuan Agong. Article 145(1) is very clear and there is no ambiguity. Therefore the advice of the Conference of Rulers is unnecessary. At best a senior ruler could privately tell the Yang di-Pertuan Agong of the futility in refusing the appointment and also the repercussion that would ensue especially the stalemate which should be avoided at all costs.

It being the Constitutional requirement that the Prime Minister advise the Yang di-Pertuan Agong and, it is inappropriate for anyone to suggest other names. By doing so, they are indeed telling that the Prime Minister's choice is wrong.

After all the doubts raised, concerned expressed, legal arguments put forward, the matter has ended happily. The Prime Minister's advice has been accepted, and Tommy Thomas is the new Attorney General, and he has started work. However, one question that lingers on and that had escapes consideration is that: what could have happened if the Yang di-Pertuan Agong had refused to accept the Prime Minister's advice.

We must remember that the Prime Minister has been elected by the Parliamentarians, who command the majority in Parliament and who have elected him as the Prime Minister. The Parliamentarians are people's representatives; the people had elected them to serve them. In the circumstances, the rejection by the Yang di-Pertuan Agong of a name submitted by the Prime Minister would be considered as a challenge to the people whose representatives had elected a suitable candidate as their leader in Parliament to be the Prime Minister. Thus, any stand taken against the advice of the Prime Minister will not go well with the people.

There was a suggestion that in the unlikely event of such a statements the Prime Minister could bring the question to the Federal Court and seek an answer on an urgent basis. The problem here is: there is no Attorney General to argue the governments’ case; on the other hand, the Prime Minister could treat the refusal by the Yang di-Pertuan Agong as having no confidence in mind. This is a serious situation. What can the Prime Minister do? Resign as a Prime Minister? That cannot be the answer! Such a course would mean that the people have lost. Aside that, had a wrong interpretation been upheld, then, the entire constitutionality of the issue would become explosive. That should not happen and the people will not countenance such a course.

These are very interesting legal issues but if common sense prevail, then, the country will have to decide as to who is right the Prime Minister or the Yang di-Pertuan Agong? That, it is submitted, is an undesirable course, and should not happen. The present system is correct and should remain so.

Is telling the truth seditious?

by K. Siladass

The Selangor Sultan Sharafuddin Idris Shah “has expressed disappointment with the actions of certain parties, who he says “openly insult and belittle the monarchy in a bid to instigate the people to hate the Malay Rulers.” He is especially saddened as the instigation against Malay Rulers came from the Malays themselves. This statement comes in the wake of a letter written by Datuk A. KadirJasin, veteran and eminent journalists who was at the helm of UMNO's, later UMNO Baru's mouth piece, New Straits Times.

KadirJasin in his letter has disclosed the huge amount spent on the Yang di-PertuanAgong. Either it is false or true. If it is false, then, it is an offense; on the other hand if it is true, then, it needs to be addressed and the people are rightfully entitled to the benefit of the truth.

Rather than taking Kadir to task it would be a prudent course to evaluate the nuance of his statement.

The Sultan of Selangor says that the Malays themselves are instigating. The word “instigating” has many meanings, and one among them, is to prompt someone to think. Therefore, the real position is that the Malays have begun to think, and it would not be proper to say that they are instigating, or campaigning an erroneous cause.

One must always remember that there was a time when some Malay politicians looked to Indonesia for guidance, and they were labelled as radicals because of their left-leaning political beliefs, and their overt association with communists. The British, with the help of the Malays protected the monarchical institution. And it is not a tale that the Malayan Communist Party openly campaigned for a Malayan Republic. Now, the truth is that any change in the monarchical system can only be initiated with the support of Malays: the non-Malays by themselves cannot do so; because it could lead to other political upheavals.

The Malays being in the majority there is no doubt that the decision of the Malays will always be paramount.

Therefore, if the Malays themselves are questioning the life style, or the political views, or the criticisms of the Sultans from time to time, it cannot, and should not be treated as a negative sign but accept them as reasonable and pragmatic evaluation by the Malay mind, which could also be the view of Malaysians of all races about the Malay Rulers.

One anecdote of Emperor Akbar is very enlightening. Akhbar walked into his court looking very grave, and angry. When asked the cause for his angry mood, he answered that on his way someone pulled his moustache, and spat on his face. He wanted to know what to do with the person who had committed such a heinous crime.

One minister said, “the culprit should be jailed for five years.” Another said, “his head must be cut off.” Thus, most of the ministers wanted severe punishment, meted out. Then, enters Birbal, a noted man of wisdom, who, on being told of the attacks on Akbar, laughed and said, “Who could have spit your face and pull your mustaches except your son.” Akbar said: “You are right…” If we take this as an analogy, we could say that the subjects of the Sultans are their children. And occasional attacks – healthy ones – should not be groused but taken in the spirit of receiving good advice or suggestion.

Speech of K. Siladass on his eightieth birthday

on 30^th June 2018

Distinguished Guests,

Ladies & Gentlemen,

Time melts away reminding us that we are growing older. The weak mind seeks to find solace along the way. We cannot defeat time. It follows you as shadow. There was a time when old age was thought to be a sin. And if that is not enough, old age was also considered as a burden. So, chaps like me had to find a way to be sober in this world and choose a middle course between a world which had scant respect for old age, and a world full of affection surrounded by friends and relatives.

Aging is not a sin, nor is it unnatural. It is part of life. But the negative perception about old age and aging had become proverbial. There is a feeling that aged persons are a nuisance. But when I see you all gathered here this evening, I feel assured that I am not a nuisance. However, something remarkable happened this year which had earned some modicum of respect for old age.

From the time the Fourteenth General elections was announced there was significant shift in the thinking of the people. There were clear indications that TunDr Mahathir Mohammad will be the Prime Minister should the coalition were to form the next government. He was ninety-two years old. There was a general feeling. What can an old man of ninety-two, going ninety three do? There were video clips showing the daring exploits of TunMahathir. Driving alone in pouring rain, horse riding, reminding the viewer of Yul Brynner in Magnificent Seven and the accompanying Elmer Bernstein’s music. Many must have begun to realisethat it must be a fun to be ninety-two going ninety-three. Nice feeling though to those like me who were turning to be octogenarians.

Then came May 9^th. The people’s verdict was, Tun Mahathir led coalition should form the next government, and Mahathir should be the Prime Minister. Overnight everything changed. Until then old aged people were thought to be burdensome: castigated and neglected. When Mahathir took office as the seventh Prime Minister the deep-seated traditional negative attitude towards old aged people changed. There was all of a sudden immense respect for old aged persons.

Not only that: everything old was promptly displayed and honoured. The old inexpensive watch Mahathir wore, and not forgetting my half-a-century old friend Lim Kit Siang, who is still wearing a watch he bought few decades ago became focal point of discussion and admiration.

There is an Arabic proverb: If you don’t have an old man buy one. I hope old age has acquired a new definition and meaningful respect.

So much so, everyone wants to be old or wants to look old. And I am glad too see you all who have come to see how an old chap is getting along. After seeing you all ladies and gentlemen. I remind myself of what Rabindranath Tagore, the Nobel Prize laureate wrote:

                I do not wish to die

                        in this lovely World.

                I wish to live as man

                        among men.

Yes, that is what I hope for. After seeing your support I want to live many more years to enjoy your warmth, or until you get fed up. My old friend Dr Lee Man Pin could not make it to this party but phoned me and said that he will definitely attend my hundredth birthday. I want to live until then and see him.

By your presence this evening you have assured me that life begins at eighty. And I will certainly respect and honour your sentiments. Thank you.

Thank you my dear friends from near and far. You will always be on my mind.