K. SILADASS

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.