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What does our Constitution say about appointing an Attorney General (AG)?

June 4, 2018

Fact. AG cannot advise on Syariah matters, native court and military court-martials.

 

Note: This post is extracted from here, published on Sunday, June 3, 2018. This blog takes what has been extracted at face value. The extraction apparently was written by Ganesan Kasinathan, Advocate and Solicitor, Kuala Lumpur, 03 June 2018.

DOES THE AG NEED TO BE A MALAY OR A MUSLIM?

DOES HE HAVE TO ADVISE ON SYARIAH LAW?

[GK Ganesan Kasinathan, Advocate and Solicitor, Kuala Lumpur]

The nation is trundling towards a calamitous constitutional misunderstanding. Someone has to do something about it and set matters straight.

Let us identify what is happening.

A debate has begun to rage. It concerns the identity of the person who should be the next Attorney General.

It is about constitutional provisions regarding what characteristics the Attorney General should have – and whether the current nominee, Mr. Tommy Thomas has them.

Two conflicting ideas

At the heart of the debate are two conflicting statements:-

The first is the altruistic proposition that certain quarters ‘have no objection at all to a non-Malay being nominated as AG.’

The second is an opposite argument. It is that the AG should be ‘in a position to advise the palace on Syariah matters.’

And the third proposition, being a conclusionary one, is the argument ‘… that therefore a judge, or a retired judge of the Court of Appeal or the Federal Court ought to be appointed as AG.’

These arguments are deeply flawed

Here are the reasons:

These arguments have no constitutional basis at all. In fact, the Federal Constitution says the opposite. Why is that?

The rakyat should be allowed to interpret the Constitution.

The rakyat should take part in this debate. They should look at the Constitution and inform themselves of the important aspects of this confusion. They should be taught to interpret the Constitution. It is their right. Lawyers should not be the only ones telling people what the law is.

So let us look at the Constitution

The starting point is Article 145. Answer to the claim AG ‘must advise on Syariah law.’

The first and most important opposition to the Administration – and Mahathir – comes from the argument that the ‘AG must be able to advise the King on Syariah matters.’

This demand contradicts Constitutional provisions

This is because the Constitution exempts the AG from such a requirement.

You will understand this readily, because the relevant part of Article 145(2), states:-

‘145(2): It shall be the duty of the [AG] to advise the [King] or the Cabinet or any Minister upon … legal matters, and to perform … duties of a legal character, … and to discharge the functions conferred on him by or under this Constitution or any other written law.

So what it says here is that the AG must discharge the duties that the Constitution asks him to. What power does the Constitution give him?

That is explained by Art 145(3). It states:-

‘145(3): 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.’

Clause 3 prohibits the AG from dealing with proceedings before Syariah Courts and Military Courts. As far as Syariah matters are concerned the AG has no role.

No one would disagree that the King must have the very best Syariah advisor – an expert. Were previous AGs experts on Syariah Law? Was Gani Patail an expert on Syariah law? Was Apandi? How come no one objected then?

  • So how can the AG be now compelled to perform a duty – or exercise a power – that the Constitution has taken away from him?
  • Why is the AG now being asked to advise on something that the Constitution tells him is none of his business?

The person to advise the King on Syariah law cannot be a retired judge

The fifth argument is that the nominee for the AG ‘must be either an existing or a retired Federal Court judge or a Court of Appeal judge; for, that way he can render legal advise on Syariah matters.’

This argument is a non-starter.

Again there is a clear instruction from the Constitution on this.

Apart from informing the AG what matters over which the AG has powers to act on, the Constitution goes one step further.

Secular courts are non-Syariah courts: i.e. the Magistrate Courts, Sessions Courts, High Court, Court of Appeal and the Federal Courts.

[Article 121 defines the secular courts]

The Constitution expressly removes from all secular courts any power that is only a Syariah Court can exercise.

Clause (1A) says:- ‘The courts referred to in Clause (1) [read, ‘secular courts’] shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah courts.’

The Syariah judicial system works under a different set of laws. They have their own courts, their own judges, and their own lawyers. They are independent of the Judiciary.

Therefore if Syariah law advice is needed, their Highnesses have ample Syariah resources available at their disposal.

If so, how can candidates be chosen from the retired or existing list of the secular Federal Court or the Court of Appeal judges? From them have been removed the power to deal with Syariah matters.

It stands to reason that they, no matter what race or religion they profess, would have had no formal legal training on Syariah law at all. So why ask to choose from a group who possess no Syariah knowledge at all?

So the argument that the AG ‘must be able to advise on Syariah matters’ argument is a red fish! It is simply not true.

What qualities must a candidate for an AG have?

The next question to ask oneself is, who can be appointed as the AG? Article 145(1) answers the question in this way:-

‘145(1): 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.’

Note the phrase, ‘a person qualified to be a judge of the Federal Court’. Who is that?

That is explained in Article 123. It prescribes that a nominee for an AG must be (a) a citizen and (b) for the last 10 years before his appointment he shall have been ‘an advocate’; or ‘a member of the Judicial and Legal service’ (this differs from judges in the Courts – do not confuse them as one), or a mixture of both. It does not mean he must be a Federal Court or Court of Appeal Judge. He must only be one who is ‘qualified to be’ one.

From which pool would you choose your AG, given the choice?

As a matter of choice where would you choose the AG to come from? Let us examine the pool of resources available to the Prime Minister.

Suppose there are about 1,800 lawyers in the AG’s Chambers [AGC]: that is about right. Suppose we assume that at least 500 AGC lawyers in AGC have crossed the ‘10 year practice’ mark (the numbers could be far lower]. Then at least 500 persons qualify to be the AG.

Now, the Malaysian Bar has ten times more lawyers than the AGC. It had, at the latest count, over 18,000 members. Of that number [I extrapolate] there are over 9,000 lawyers who qualify under this Art 123 – they have crossed the ‘10 years of continued practice’ requirement. They are all citizens.

Go now to the judiciary as a source. If you add the total number of judges in the Federal Court and the Court of Appeal that does not cross 45. A great proportion of those judges are from the AG’s Chambers: some say as high as 90%.

As a matter of choice, where would you choose the AG from? From the largest pool of 9,000 members, or a lesser pool of 500 lawyers from AG’s chambers, or from a smallerpool of 45 judges from the Judiciary –the latter of which is already under attack?

Equality of all candidates not matter of race

The sixth point is, the Constitution, which upholds equality as its central core (read Article 8 of the Constitution), does not prevent a non-Malay from being appointed an AG. If our forefathers thought it necessary, they would have inserted that proscription into the Constitution. Had they done it, that would have been against all known conventions of human rights. They have not. Our forebears were reasonable people.

They saw this issue and catered for it. The framers of the Constitution were men of great foresight. So why manipulate that intent by specious arguments of non-existent‘conventions,’ conventions which are against human rights?

So there is no racial restriction in the Constitution. So that argument too goes out of the window.

The King ‘shall appoint’

Clause (1) of Article 145 states that His Majesty the King ‘shall’ on the advice of the Prime Minister, appoint as AG a person proposed by the Prime Minister. This is what it says:-

‘145(1): 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.’

Note the word, ‘shall’. It is mandatory.

The binding nature of the Prime Minister’s proposal is buttressed by an explanatory clause in Art. 40(1A): It says:-

‘In the exercise of his functions under this Constitution or federal law, where the Yang di-Pertuan Agong is to act in accordance with advice, on advice, or after considering advice, the Yang di-Pertuan Agong shall accept and act in accordance with such advice.’

The phrase ‘shall accept and act in accordance with such advice’ points to a mandatory requirement. There is a reason for this. The functioning of a valid government cannot be stultified by delay.

The Manifesto Point

The seventh argument is: ‘In appointing a non-Parliamentarian, Mahathir has departed from the Harapan manifesto that the AG shall be an MP.’

Many points answer this vacuous argument. The manifesto point is readily overcome.

Second, I have said elsewhere, the AG ought to be an MP answerable to the people, through parliament. I have suggested that the Constitution ought to be changed to effect that. The Committee for Institutional Reform is engaged in just that. Like the Council of Eminent Persons, they have had no rest. They are burning the candle at both ends. They are inundated with all manner of papers. They will suggest amendments – in good time.

But until that change is done, the law, as it stands, must be complied with. There is no countervailing argument against that. There is, fortunately, a Half-Way House solution.

It is embedded into the Constitution. Art. 61 of the Constitution, which states, ‘(2) Either house of parliament may appoint as a member of any of its committees the [AG] … notwithstanding that he is not a member of that house.’

So, through this side-door, Parliament may, after it convenes, ask the AG to be appointed into its committees. The Committees may ask him to answer questions. In this way the current AG can be brought into Parliament’s deliberations.

So these concerns are easily alleviated. So any allegation that ‘Harapan has breached its Manifesto’ is really no issue at all.

Parliament has a right to override the King on executive matters

The King has executive authority over the Federation. That authority is, however, not absolute. It is subject to the dictates of Parliament: this is because Art 39 states:-

‘The executive authority of the Federation shall be vested in the Yang di Pertuan Agong and exercisable … by him or by the Cabinet or any Minister authorised by the Cabinet, … but parliament may by law confer executive functions on other persons.’

The AG’s appointment, under the current law, is an exercise of executive authority. If the King does not act on the advice of the Prime Minister, the Constitution grants another route to Parliament. In matters of governance, the primacy of Parliament is constitutionally entrenched.

But Parliament has not been convened. That time is not yet come. It will. But can we wait till then?

The power of the Conference of Rulers

The final argument in the opposition’s quiver is that the Conference of Rulers have an absolute power to object to any suggestion of the Prime Minister. This is incorrect.

True it is that the Conference of Rulers have certain ‘discretionary’ powers. Article 38 lays it out in great detail. They have a right to be consulted on certain matters. These are listed with some care:-

These deal with matters relating the appointment of the King, e.g., include any matter relating to the special position of the Malay rulers, the Islamic religion or the rights of Malays under Article 153 (Reservation of quotas in the services, permits etc. for Malays).

True also it is that that Art. 38(2)(c) states that the Conference of Rulers shall exercise its functions of consultation by –

‘… consenting or withholding consent to any law and making or giving advice on any appointment which under this Constitution requires the consent of the Conference or is to be made by or after consultation with the Conference.’

Some argue that Clause (6) gives the Conference of Rulers the right of carte blanche – blank cheque; that that it is ‘an absolute right.’ This is what the relevant part of Clause (6) says –

‘… the members of the Conference of Rulers may act in their discretion in any proceedings relating to the following functions, that is to say … (c) consenting or withholding consent to any law and making or giving advice on any appointment which under this Constitution requires the consent of the Conference or is to be made by or after consultation with the Conference; In constitutional theory, the personal prerogative of the monarch is said to contradict democracy.

On a proper reading of Clause 6, this personal power is not absolute

First, much of the strength of these prerogative power are diluted by constitutional principles.

Second, other clauses in the Constitution severely limit that power.

Third, the ‘right to consultation’ cannot mean an ‘absolute right to refuse.’ That is why the Constitution, with great care, has said, their Highnesses ‘may act in their discretion.’

This discretion is called ‘royal prerogative.’ Blackstone described it as the powers that ‘the king enjoys alone, in contradistinction to others, and not to those he enjoys in common with any of his subjects.’

So they are ‘personal prerogatives.’ But the principles underlying the exercise of prerogatives have been uniformly accepted without contradiction across the world.

It is for that reason such prerogatives are carefully circumscribed. The way the words in clause 6 are crafted is a call to exercise, in their Highnesses discretion, one of the most fundamental provisions of the Rule of Law: when a constitutional discretion is granted, it cannot be exercised arbitrarily.

So the exercise of the ‘personal prerogative’ must seek to achieve the equality principle rooted as the basic fabric of the Constitution.

It must be subject to transparency and good governance. It cannot be exercised arbitrarily. It cannot be exploited capriciously. Such a discretion must be exercised in a way that will aid democracy and uphold the Rule of Law.

The words must be construed to comply with the spirit of the Constitution and the Will of the People.

Conclusion

Parliament is not in session. Not yet. Yet someone has to carry the burden of the AG. Charges have to be filed. People have to be hauled up before the courts.

The Cabinet is busy answering a hundred, perhaps a thousand urgent calls upon its time. This amidst the urgent concern that economic matters should be dealt with alacrity.

Manifesto or no, Mahathir has to stop the haemorrhage.

The Cabinet cannot hang about.

Time is of the essence. Mahathir has to act now.

Those who delay the appointment of the AG are doing a great disservice to the toils of an elderly patriot trying to right a wayward ship.

These detractors are playing into the hands of the pilferers who have purloined billons from our coffers.

They sit pretty, smiling from their strongholds. They think nothing will come upon them so long as they keep raising one constitutional crises after another, and trigger as much unease and delay as possible.

That is why they are delaying the appointment of the AG. They wish to feel safe. They think the GE 14 is a pyrrhic victory.

They feel they are untouchable.

They must be stopped.

As a nation we cannot sit idly by, while these detractors stultify the rakyat’s hard-won victory.

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