A bigger constitutional crisis is brewing

Tommy Thomas: our next AG? If Dr M has his way, yes. 

A lot of press coverage has been given to the stand-off in Perlis where the ruler there has chosen an MB which the BN MPs do not support.

The Malaysian Insight has just broken a news story about a potentially bigger constitutional crisis brewing, which is the king's rejection of Pakatan's choice for Attorney General because he is not a Malay/Muslim. According to that story, Tommy Thomas is the unanimous choice of Amanah, Bersatu, DAP, and PKR.

Mainstream media has not reported on this matter yet but Malaysiakini has one story on it quoting a Pakatan source who says that only one name -- Tommy Thomas -- has been submitted to the king, which supports The Malaysian Insight story that Pakatan are not backing down on this matter.

Kadir Jasin, a veteran newsman and the spokesman for the Council of Eminent Persons, has blogged on the matter, saying:

"What's the use of having Malays in high positions if that Malay is cruel, corrupt, and someone who collaborates with thieves and speculators?” 

Kadir goes on to add that integrity was more important than race.

In my previous blog posting about Perlis, I predicted that UMNO will eventually give in and let the ruler have the MB of his choice despite the fact that UMNO has the constitution on its side. The reason is that UMNO has in recent years positioned itself as staunch defenders of the royalty and were quick to label any defiance against the royalty as "derhaka". So there is no way it can sustain its defiance of the Perlis ruler.

The AG situation is a different kettle of fish. The legal principle is the same but the political context is different. But first let's be clear about what the law says on the matter. Lim Wei Jiet, deputy chairman of the Bar Council’s Constitutional Law Committee, provides some clarity on the matter:

Article 145(1) of the federal constitution states that “the YDPA (Yang Di-Pertuan Agong) shall, on the advice of the prime minister, appoint a person who is qualified to be a judge of the Federal Court to be the attorney-general for the federation”.

But doesn't the king have the discretion to ignore the "advice" of the PM? No, says Lim, because we are a constitutional monarchy. According to Lim, article 40(1A) of the federal constitution states that the YDPA in such circumstances must accept and act in accordance with the advice of the prime minister. There is no room for any exercise of discretion.

To drive home his point, Lim highlights the following ruling in Anwar Ibrahim v Perdana Menteri Malaysia & Anor [2010] 3 MLJ 174, where our apex court considered Article 40(1A) and held:

“The YDPA upon being advised by the prime minister on the choice of his candidates must act on such advice. His Majesty does not have any discretion to reject or question the discretion of the prime minister… Reference to the YDPA in the said article of the federal constitution is only a formality by virtue of his majesty being the constitutional monarch. Such a clear demarcation of power and roles between the prime minister and the YDPA in matters of appointment and revocation of ministerial posts is imperative in order to realise the role of collective responsibility of the cabinet ministers.”

So what happens if the king refuses to Pakatan's pick of AG? Well, if history is any guide, let's just say Dr M doesn't mind taking on the royalty. Not only has he got the full support of all component parties in Pakatan for his choice of Tommy Thomas as AG, public opinion is also overwhelmingly in favour of prosecuting the people behind the 1MDB scandal and other crimes and misdemeanours. They want an AG who is credible.