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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.  


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