KUALA LUMPUR, June 4 — There have been raging comments lately on the credentials & qualifications of Tommy Thomas as Pakatan Harapan’s choice for the Attorney General (AG). To the best that I can, this article is meant to address those concerns.
1. From the outset, Article 145 of the Constitution is quite clear — the PM can appoint anyone qualified to be a Federal Court judge to be AG. The Constitution does not prescribe conditions of race, religion, academic qualification, professional experience in a certain area of law, etc.
2. ‘An AG must be Malay/Muslim’
There is no such requirement in the Constitution. Some have rightly pointed out that, until 1963, the AGs were non-Malays. Therefore, there is historical precedence of a non-Malay AG. For those who intend to promote ethno-religious superiority over merit, that debate should be taken elsewhere.
3. ‘An AG must be able to converse in Malay’
This assumes that Tommy Thomas is not able to converse and understand Malay — hence, until this is established, it would be unfair to make any comments. Having said that, the lingua franca of the legal profession have always been English. Further, one wouldn’t insult the Rulers & the Cabinet by assuming that they cannot comprehend an AG who is speaking to them in English.
4. ‘An AG must be versed in Shariah law so that he can advise the Yang di-Pertuan Agong /Cabinet on Shariah matters’
This is a non-starter in the first place. Under our constitutional scheme, the AG is an adviser to the Yang di-Pertuan Agong and government in civil laws, not Islamic laws.
In fact, Shariah laws differ from each of the states in Malaysia depending on their respective constitutions & enactments — it is for the State Legal Advisors or Muftis of these individual States to advise on the Yang di-Pertuan Agong, if the need ever arises.
There is also an erroneous presumption that Malays are automatically versed in Shariah laws. If you track the career and academic profiles of previous AGs such as Apandi Ali & Abdul Gani Patail, they are not qualified in Shariah law either. No one bat an eyelid on the issue of expertise in Shariah law when they were nominated.
Further, the AG’s Chambers has established a Shariah and Harmonisation of Law division, a unit that will look into issues related to Islam and Shariah laws that arise at the Federal and international levels. The incoming AG can very well be advised on Shariah law matters by this unit & then tender such advice to the Yang di-Pertuan Agong/Cabinet accordingly.
5. ‘An AG must have a criminal law background’
I would admit that an AG should preferably have a criminal law background, as he is the Public Prosecutor. But it is highly unlikely for an AG to descend into the ring himself to prosecute in criminal proceedings generally. He delegates his powers to the hundreds of DPPs in the AG’s Chambers and even the Solicitor-General.
What about high-profile proceedings related to 1MDB — surely the AG himself is expected to lead the prosecution? This may be true, but this is not a given. Tommy Thomas can very well tap into the talents of the AG’s Chambers for a lead prosecutor. Or he can appoint a highly experienced private criminal lawyer as ad-hoc prosecutor specifically on 1MDB. As the AG, his main role is to oversee the criminal prosecution on a macro level & be accountable to the public on all developments — he usually does not descend into the day-to-day granularities of the case.
Moreover, the 1MDB case is unlike any criminal matter involving bodily harm — but a case likely to centre around corporate & commercial fraud. Anyone in the legal industry would know that Tommy Thomas is one of the very best there is when it comes to corporate & commercial law matters — look at any international survey & he is always the top of his class. Aided by experienced AG’s Chambers prosecutors on the technicalities of criminal procedure & the distinct application of evidence law in such proceedings, one has confidence that Tommy Thomas can pull it off to lead the charge, if need be.
6. ‘Tommy Thomas represented Chin Peng. He is therefore Karl Max & Che Guevera combined’
To align lawyers with the guilt or wrongdoings of their clients (whether true or otherwise) is totally unacceptable. Taking this to its logical conclusion, then any criminal lawyer representing a convicted murderer shouldn’t be nominated as AG because he is also a murderer.
Lawyers in fact subscribe to the cab-rank rule — they are not allowed to reject their clientele, save for exceptional circumstances.
Many have pointed out that Tommy Thomas also acted for PAS in the Kelantan oil royalty dispute with the Federal Government & even against then PKR Selangor Mentri Besar Tan Sri Khalid Ibrahim. Besides being a Communist, he is now also a PAS Islamist & Khalid Ibrahim sympathiser? Please make up your mind.
7. ‘Tommy Thomas acted for Lim Guan Eng. His independence as a Public Prosecutor is hence questionable’
It is important to note that Tommy Thomas represented Lim Guan Eng in the committal proceedings, and not in the corruption trial.
Having said that, should we still be worried of Tommy Thomas’ impartiality?
The simple answer is that Tommy Thomas can simply recuse himself from any decision to institute, conduct or discontinue any criminal proceedings against Lim Guan Eng. Section 376(2) of the Criminal Procedure Code states that the Solicitor General shall act as Public Prosecutor in case of the “absence or inability to act” of the AG. Hence, if Tommy Thomas believes that he as the AG may be unable to act in respect of Lim Guan Eng due to conflict of interest, he can recuse himself.
An AG’s recusal from certain investigations and prosecutorial matters is not unusual or unforeseeable. If a relative of an AG is suspected of being involved in drug trafficking or a company which the AG is a director is investigated for corporate fraud, surely the most obvious thing is not for the AG to resign from office — but to merely recuse himself from such cases.
In fact, US Attorney General Jeff Sessions initially recused himself from special counsel Robert Mueller’s Russia investigation into the US Presidential elections in 2017 because he was Trump’s campaign advisor and felt conflicted.
8. All things being said — if there is one unspoken requirement for the post of AG — I would say it should be integrity. Integrity to uphold the rule of law, at all costs. Integrity to act as the guardian of public interest, even if it means standing up to the government of the day.
In my humble opinion, Tommy Thomas lives up to such ideals of integrity which we deserve from our AG.
And that, frankly, is all that matters.
* Lim Wei Jiet is an Advocate & Solicitor of the High Court of Malaya & Deputy Chair of the Bar Council’s Constitutional Law Committee