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Monday, June 4, 2018

On Fear Mongering And Tommy Thomas

In one of his earliest press conferences after the election, Dr M was asked about how the new government would approach the rights of the Malays. He responded by emphasising that his government would adhere to the Federal Constitution and that the rights of the Malays would be respected, as would the rights of the non-Malays. Pertinently, he also emphasised, as he continues to do, that his government would act in accordance with the Rule of Law.

In taking that position, and by his conduct since, in particular the recommendation of reputedly the most diverse Cabinet this country has seen and the latitude he has given his Ministers to state their respective positions on their portfolios, Dr M had signalled the potential for us to shift away from an ethno-religious political construct in favour of a more inclusive, capabilities based approach.

Such an approach appears to have resonated with the voters. However, as we have seen and heard in the period following the election, there is much debate about what had led to the toppling of the BN. Though an inclusive viewpoint was an important factor, the debate reveals some uncertainty about whether it was instrumental and, if so, whether that approach is here to stay.

This represents an opportunity for detractors aimed at undermining, or even impeding, the trajectory of the current government. It goes without saying; any political actors that would benefit from a surge of ethno-religious issues would either work towards that surge or support such efforts. For these parties, fear mongering about the undermining of the status of the Malay Rulers, the rights of Malays, and the administration of Islam would be a useful endeavour for a variety of reasons that ultimately pertain to self-interest.

The nomination of Mr Tommy Thomas appears to have been a flashpoint. It has provided a useful platform to stoke fears about these matters. A perfectly credible nomination has been characterised as an attempt to undermine Islam through liberalism and secularism, and to undermine democracy through an implied support of communist ideals. 

This has been packaged in the apparent denial of a legitimate need on the part of the Malay Rulers, in particular the YDPA, for advice on matters of Shariah law by the nomination of a non-Muslim. This purported denial suggests that the legitimate needs of the Malay Rulers as Heads of Islam are being ignored by the nomination.

It is possible that as a consequence of the murkiness, the matter is to be deliberated by the Conference Of Rulers.  The Malay Rulers are of course entitled to deliberate on any matters that their Highnesses consider to be relevant to their roles as Malay Rulers. 

It bears consideration though that, unlike the appointment of judges of the Superior Courts (Article 122B(1)), the appointment of an Attorney General is not a matter that requires consultation with the Conference Of Rulers. That is a matter on which the YDPA is to act on the advice of the Prime Minister (Article 145(1) read with Article 40(1A)).

This is not to say that that the YDPA is precluded from considering the matter in consultation with the other Malay Rulers, should His Majesty consider this to be necessary. 

A legal question does arise as to the scope of such consultations. That would ultimately relate to the powers of the YDPA as to the appointment of the Attorney General.

Article 145(1) specifically deals with the appointment of the Attorney General and it explicitly requires the YDPA to appoint the Attorney General on the advice of the Prime Minister. The YDPA is therefore precluded from questioning such advice save on the limited question of whether the Prime Minister is duly empowered to give such advice. He may, for instance, in recommending the dismissal of one Attorney General and the appointment of another, be acting in conflict of interest. 

Article 40 does however, generally provide for where the YDPA is to act on advice. A40(1) and (1A) suggest that the YDPA is entitled to “consider” the advice given, and for that purpose,  is allowed access to information the government might have on the subject. Thus, the scope of consultation could be slightly broader though, ultimately, the YDPA is obliged to act on advice.  It may also be argued that as Article 145 specifically deals with the subject of the appointment of the Attorney General, its language is to be given effect as the specific provision over-rides the general one.

Whichever interpretation is adopted, in my respectful view, the YDPA is ultimately obliged to act on the advice given save where the Prime Minister is not empowered to give such advice.

This should, however, not be any cause for concern.

Matters pertaining to the administration of Islam fall within the purview of the State. The Malay Rulers are Heads of Islam in their respective States. The YDPA is the Head of Islam in the Federal Territories. The focus of the Malay Rulers is thus on the personal law of Muslims. For this purpose, the respective Majlis Agama and Muftis advise the Malay Rulers.  This is the case even for the Federal Territories.

Further, the Shariah courts enforce Shariah law, and the Attorney General’s Chambers plays no role in this. 

It is only where Islamic law intersects with matters in the public sphere involving the Federal Government that the Attorney General’s Chambers is involved; for instance, on laws pertaining to Islamic Banking. The administration of Islam as a personal law does not concern the Attorney General’s Chambers.

As for the status of the Malays, that is protected by Article 153. Unless and until that provision is amended out of the Federal Constitution, it is there to stay. 

Given this state of affairs, I do not think there is any reason for any of us to be fearful. The system will self-regulate.  

The government changed on 9th May and the sky did not fall on our heads. Things are moving in the right direction now and, understandably, an overwhelming number of Malaysians are concerned about attempts to undermine the changes that are happening around us. We are worried that the continuing fear mongering will only entrap us in the murkiness of race politics that has impeded our progress for far too long.  


Wednesday, May 16, 2018

On The Reform Agenda

The Pakatan Harapan ousted the BN on the strength of a promise of reform. Having formed the new government, it is clear that the ability to deliver on that promise has to be balanced against the challenge of taking the reins and steering the country back on course. 

From what Dr M has been doing, it appears that his government (as small as it is) equally recognises reform as a priority. The establishment of the Council of Elders, and the Committee On Institutional Reform speaks to that.

It is imperative that Dr M and his team be given the fullest support and latitude to do what needs to be done. To the extent that there is any political infighting s the members of the Cabinet are being determined, and it appears that there may be, it would be a shame if that infighting impacted on reform efforts.

More than that, it would amount to a betrayal of the mandate given to Pakatan Harapan to reform the country. Political interests must give way to the national interest. 

I am happy to note that, as quoted in Malaysiakini today, Dato’ Seri Anwar has said that the litmus test of the new administration (perhaps we should stop using the word regime) will be on how its implements the reform agenda. 

I think that is a fair yardstick to apply. It implicitly recognises that the new administration must be given the time and space to do what it needs to, and that a high standard is expected.

It bears reiterating that the necessary time and space must be given to the new administration to let it see through its reform agenda.

Going by the issues that created the momentum for the ousting of the BN, the expected reforms are numerous, ranging from the electoral system to the public service and, close to my heart, the administration of justice.  This will require a lot of thought and effort and, more importantly, the political will to drive reform through to completion.

Having said that, this is a process that has to be approached with a sense or urgency and novelty. Decisive steps will have to be taken. Problems need to be addressed with the best solutions, even if these involve approaches that are novel or unconventional. 

For example, where the justice system is concerned, if the administration is serious about shoring up public confidence in the Judiciary it must take concrete steps to do so. This has to start by asking whether the Judiciary is made up to the best persons for the job. It may be that, without impinging on their security of tenure, measure needs to be introduced to allow for judges to be independently vetted, evaluated and reviewed for performance and suitability for office periodically by an independent judicial ethics committee. There is a Judicial Ethics Committee Act 2010 in place. It needs to be tweaked. Similarly, it may be that the Judicial Commission Appointments Act 2009 will have to be amended to make it wholly independent of the Judiciary in the manner originally proposed by the Bar. This is after all the way in which the commission operates in the UK.

Similarly, to ensure that justice is seen to be done, it may be the case that the judges of the Federal Court and the Court of Appeal be required to deliver written grounds of judgment for every appellate decision of those courts. This will make their reasoning known to litigants and the wider public, and ensure that due consideration is given to the issues that arise for determination. It will also eliminate concerns about selective decision-making.

Also, it would best for all appeals to the Federal Court to be determined by panels of at least 7 or 9 judges, each of whom write or contribute to the written decisions of the court. This is, after all, the practice of the apex courts in the USA, the UK and Australia, a practice that ensures the development of the law in a coherent manner. The Federal Court is after all the apex court tasked with supervising and developing judge made law in the public interest.

These changes are easily applied without the need for constitutional amendment.  However, those seeking change will have to wrestle with entrenched ways of thinking, comfort zones, or circumstances, these obviously beneficial practices have not to date been adopted. 

Dealing with an entrenched culture is going to be one of the biggest challenges to the institutional reform. It will have to be driven through unrelentingly by administrators capable of staring it down. Amongst the most important of these administrators is the Attorney General. That is why I think that the reform process can only truly start, going from theory to practice, when we have an Attorney General who understands what is needed and is not daunted by the challenge.

That is why a new Attorney General has to be appointed as quickly as possible, one who is capable of doing what it takes but who remains accountable to Parliament. 


Tuesday, May 15, 2018

On The Attorney General

There are calls for a non-political Attorney General. 

If the Attorney General were only the Public Prosecutor, this would make sense. You would want the person vested with the power and discretion to prosecute to be wholly free from influence. 

However, the Federal Constitution says that the Attorney General is also the Public Prosecutor, and thus serves the dual function of both being the legal advisor to, and the representative of, the Government as well as the Public Prosecutor.

It is for this reason that the Federal Constitution allows for the appointment of a Member of Parliament to be the Attorney General, who may even be appointed as a member of the Cabinet (see Article138(2) and Article 145). In this way, the Attorney General can be made accountable to Parliament.

This is a vital dimension of the discussion and should not be overlooked. This accountability would extend to the role of the Attorney General as Public Prosecutor.  Decisions made in that latter capacity could also be reviewed and scrutinised in Parliament.

I appreciate, however, that there is basis for concern as to the potential for political influence to creep into the sphere of prosecutorial discretion. That concern can only be completely addressed by a constitutional amendment that separates the office of the Attorney General from that of the Public Prosecutor. 

That is something, as I understand it, the Pakatan Harapan is committed to doing. It however requires steps to be taken, Apart from the constitutional amendment, it would be necessary, amongst other things, to establish a separate body akin to the Crown Prosecution Service in England, the reassigning of officers of the Attorney General’s Chambers to that new body, the amendment of criminal laws to provide for this fundamental change.

Such steps must also be taken in tandem with the other reforms the Pakatan Harapan says it will introduce, in particular the reshaping of the Malaysian Anti-Corruption Commission into an independent body accountable to Parliament. If this is taken to the fullest, it could possibly involve the head of that agency also being given an independent power to prosecute.

To put this into play, there is a need for continued political will for such change. The new Attorney General must be someone who can see to it that the Pakatan Harapan does not lose steam on the subject or, for other reasons, retract its position on the commitment. An Attorney General who is a Member of Parliament and in the Pakatan Harapan would be able to do that more effectively than an outsider.  The candidate for Attorney General must however be someone who is seen as committed to this change and who is capable of delivering it.

In the meanwhile, there are ways in which any lingering concerns about political influence on prosecutorial discretion can be addressed temporarily. The Attorney General could seek to exclude himself from decisions to prosecute or not by delegating the functions of the Public Prosecutor to the Solicitor General. Should the need arise, a lawyer from private practice could be contracted as the Solicitor General for that purpose. Additionally, independent oversight committees could be established to oversee decisions made. And, the Attorney General could be asked to prepare reports for Parliament. For this purpose, if necessary, an Administration Of Justice Act could be enacted.

The office of the Attorney General is pivotal to the reforms in the administration of justice that the Pakatan Harapan has committed to. Whoever fills that position must not only be a person recognised for integrity and principle, but also to the Rule of Law and the highest standards of the due administration of justice.

He or she must also be committed to those reforms and must be able to drive the process through to completion, working both with the Government and other stakeholders. This calls for an understanding of the processes involved in the administration of justice as a whole, and in the civil and criminal justice systems. That person must also be able to work with the officers of the Attorney General’s Chambers, who in turn should be able to relate to him or her. Internal resistance would undermine any efforts to introduce reforms.

Ultimately though, that person must be accountable to Parliament from the outset.