KUALA LUMPUR, June 6 — The solicitor-general that was standing in for then Attorney General (AG) Tan Sri Apandi Ali would have been able to review and facilitate the repeal of bad laws, but appointing Tommy Thomas to the post was necessary for quick reforms, lawyers have commented.
Lim Wei Jiet, co-deputy chair of the Bar Council’s Constitutional Law Committee, said the solicitor-general is vested with all powers of the AG — including drafting laws — when the latter is incapable of carrying out its functions or is on leave.
“Hence, technically, a solicitor-general sitting in for the AG can very well execute all the reforms contained in the government’s manifesto,” he told Malay Mail when contacted yesterday, citing the Federal Constitution’s Eleventh Schedule’s Section 40A and the Criminal Procedure Code’s Section 376(2).
“It is just a matter of administrative efficiency for the Pakatan Harapan (PH) government to appoint a new AG altogether to push forward with the reform agenda,” he said.
Lim said the AG plays a very important role in the reform agenda, particularly in the drafting and repealing of laws, as well as prosecution of those involved in corruption such as the 1Malaysia Development Berhad (1MDB) scandal.
“Hence, it is important for the government to appoint an AG which is very much in line with the reform agenda, a person with integrity and one which can deliver tectonic changes quickly,” he added.
“It is a symbolic move — but make no mistake, there will inevitably be structural and substantive changes to the AG’s Chambers from now on.
“The government needs someone they can trust to carry out such reforms — and Tommy Thomas is their pick. In that sense, it was important to have a new AG quickly,” he said, adding that Thomas would be able to give a long-term impact and act as a trustworthy agent for reform.
After the PH coalition came into power in the 14th general elections and formed the new government, Apandi was placed on indefinite leave while his deputy, Solicitor-General Datuk Engku Nor Faizah Engku Atek filled in for him.
Yesterday morning, the Yang di-Pertuan Agong consented to Thomas’s appointment as the new AG, making the constitutional law expert the first non-Malay and non-Muslim to take on such a role in Malaysian history.
Lawyer New Sin Yew said the solicitor-general can under the Federal Constitution exercise the AG’s powers and functions if the latter is indisposed, noting that the federal government “would be able to carry out legal reforms even in absence of an AG”.
“Of course if the post of the AG is vacant for a long period, it is a sign of uncertainty to the public that the government is not able to put its house in order,” he told Malay Mail when contacted.
New said Thomas’ appointment was important because of various reasons, noting: “Firstly it is a statement by the government to the public that they are committed to upholding the rule of law and the constitution by appointing a senior member of the Bar who has been advocating the same for the most parts of his career.”
“Secondly, the appointment sends a strong message that appointment to the top positions are dependent on one’s merit and not one’s race or ethnicity,” he said.
With many of the new government’s promised reforms requiring constitutional amendments and with such a task usually falling upon the AG, New said it was important that “someone experienced in constitutional law be placed at the helm to undertake this crucial task”.
In PH’s election manifesto, the coalition promised to review laws such as the Official Secrets Act 1972, Witness Protection Act 2009 and Whistleblower Protection Act 2010 and to introduce a Freedom of Information Act.
PH also promised to abolish a long list of laws: Sedition Act 1948, Prevention of Crime Act 1959, Universities and University Colleges Act 1971, Printing Presses and Publications Act 1984, and the National Security Council Act 2016.
It also planned to repeal the mandatory death penalty and certain “cruel” provisions in various laws: Penal Code, Communications and Multimedia Act 1998, Security Offences (Special Measures) Act 2012, Peaceful Assembly Act 2012, and the Prevention of Terrorism Act 2015.
Lawyer Surendra Ananth, who is the co-chair of the Bar Council’s constitutional law committee, said the solicitor-general can carry out any of the AG’s functions and can as an acting AG still advise on the drafting of laws since it is carried out by the Attorney-General’s Chambers (AGC).
But he said it was important to have a new AG quickly with the appointment of someone who is committed to the government’s reform agenda, due to the huge task of ensuring a prompt and effective reform process such as law changes for the reform of key government institutions.
“[It’s] important that the AG be the government’s choice as the AG will be working closely with the government to realise their reform agenda. He must also be someone who is well versed with the intended reforms,” he added.
Describing Thomas as well-respected in the legal fraternity and as someone who is “independent, of high integrity and personally committed to institutional reforms”, Surendra also said the new AG should refrain from carrying out prosecutions.
“In line with the government’s reform agenda, I think he should immediately declare that he will not exercise any criminal prosecutorial function until the constitutional amendment to remove such powers from the AG is completed.
“The prosecutorial role of the AG should be handled by the solicitor-general,” he said, noting that the separation of such functions was common in many democracies.
Among other things, PH had promised in its manifesto that it would separate the role of the Attorney-General as the government’s key legal adviser and the public prosecutor to avoid conflict of interests from arising.
Rajsurian Pillai, who is also co-deputy chair of the Bar Council’s constitutional law committee, said the appointment of the new AG is not “mere symbolism”, and that it is who the prime minister thinks is the best person to carry out the duties and who the government thinks it can work with.
“The interim AG is only there temporarily before the new AG is appointed,” he said, referring to Solicitor-General Engku Nor Faizah.
“She has the full powers of the AG but she is only there to fill the position temporarily. She is more of a caretaker of the position and to conduct the daily AG’s affairs while the AG is not available,” he added, highlighting the importance of having the AG position filled up with a person confirmed for the long term.
With the AG being the head of the AGC, Rajsurian indicated that it was best for the solicitor-general as the deputy to not conduct the AG’s responsibilities for “too long” in absence of the AG unless appointed by the latter to do so.
Lawyer Farez Jinnah, a member of the Bar Council’s constitutional law committee, said Tommy’s appointment should not be seen as an extraordinary appointment, noting that he is a Malaysian and the choice of the government of the day.
“Furthermore, it is not a lifetime appointment, thus the AG must also have the confidence of the government it acts on behalf of. In such circumstances, it was important for the AG’s role to have been decided forthwith upon the Prime Minister’s advice,” he told Malay Mail when contacted.
On whether the solicitor-general could draft and review laws, Farez said the “final approval will have to come from AG’s office even if the solicitor-general can oversee drafting and reviewing.”