LETTER | Our constitution does not explicitly or implicitly give the prime minister the discretion to appoint the attorney general.

The appointment of the attorney general is the constitutional prerogative of the Yang di-Pertuan Agong on the advice of the prime minister. The advice of the prime minister cannot be used to usurp the power of Yang di-Pertuan Agong.

Before the 14th general election, Malaysians were generally concerned with the appointment of attorney general by the prime minister after the dismissal of Abdul Gani Patail with the appointment of Mohamed Apandi Ali as AG.

Malaysians strongly felt that there is a need to review Article 145 of the Federal Constitution regarding the appointment of the attorney general.

There is a need to take away the power of appointment from the prime minister. The amendment should be as follows:

“The Yang di-Pertuan Agong shall, on the advice of the Conference of Rulers and consent of Parliament, appoint a person who is qualified to be a judge of the Federal Court to be the Attorney General for the Federation.”

Malaysians also strongly feel that there is a need to create a separate and independent office for the public prosecutor instead of allowing the attorney general to assume the role of chief public prosecutor.

The public prosecutor should be vested with the power to prosecute and be answerable to Parliament. The public prosecutor should be made to serve written notice to Parliament on its decision not to initiate any prosecution recommended by MACC.

Much as we welcome the appointment of Tommy Thomas, we should abide by the decision of the Yang di-Pertuan Agong in his rejection of the appointment of Tommy Thomas as the attorney general.

The circumstances of the nomination of Tommy Thomas are deeply troubling and expose the hypocrisy that lies at the heart of a government that claims it wants to remove the absolute discretion of prime minister from the appointment of attorney general.

The power of the Malay rulers in rejecting the AG's appointment was written by Tommy Thomas himself in 2007:

"Hence, the legal consequences of failure to consult the Conference of Rulers or the Conference not approving a candidate submitted by the Executive are not specified therein, thereby suggesting that all the authorities referred to in that Article must approve a particular candidate. Thus, in my opinion, the Conference of Rulers is entitled to reject a candidate for appointment submitted to it if a majority of Rulers deem him unsuitable for the constitutional office of judge.

“What may be beyond their constitutional right to be consulted is to repeatedly reject several candidates for a single position which would then remain vacant for a substantial period of time resulting in a constitutional impasse. No doubt, the good sense of those involved in the selection process would ensure that such an eventuality does not occur.

“The checks and balances system under Article 122 B(1) was put in place so that no one authority has the sole monopoly over judicial appointments. In order for the constitutional system to work efficaciously some “give and take” has to take place. Consensus is the objective; not brushing aside of the views of the major actors.

“The importance of the constitutional right of the Conference of Rulers to be consulted on judicial appointments under Article 122 B(1) is further demonstrated by Article 38 (4) which declares that no law directly affecting “the privileges, position, honour or dignities of the Rulers shall be passed without the consent of the Conference of Rulers”.

In my opinion, theright to be consulted under Article 122 B(1) constitutes a “privilege” or “position” within the meaning of Article 38 (6). Hence, the right of the Conference of Rulers to be consulted thereunder cannot be removed or diminished without their consent." - Tommy Thomas, Sept 5, 2007.

The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.