Becoming Doubting Thomas over Tommy

There are many voices of discern to Prime Minister Tun Dr Mahathir Mohamad’s adamant stance of putting up lawyer Tommy Thomas for His Majesty Seri Paduka Baginda Yang DiPertuan Agong XV’s consideration as the Attorney General

The Mole story:

Why Tommy Thomas cannot be the person for the job

by Zaidi Azmi

KUALA LUMPUR – June 4, 2018: While many have brought up race and religion to protest Tommy Thomas’ appointment as the attorney-general, the general argument among lawyers however, pivots to that of his professional interests.

Lawyer Fatihah Jamhari for example, was of the opinion that appointing Thomas as the AG would put him in a precarious position given the latter’s illustrious background representing politicians from both side of the political divide.

“He has acted for Lim Guan Eng in the corruption charges against the now Finance Minister. Why would anybody with an ounce of ethics want to place himself in such a position?” Fatihah argued.

Thomas has been shoved into the limelight since yesterday following reports that the Yang di-Pertuan Agong has not acted on his appointment and has asked Prime Minister Tun Dr Mahathir Mohamad to reconsider his choice as the AG of Malaysia.

The reason behind the King’s objection of Thomas was never made known but Malaysian Insight reported that it was due to the fact that the former, along other Malay rulers were adamant that the AG should be a Muslim Malay.

While a member of the Bar Council had highlighted that the Federal Constitution mentioned nothing about race and religion being the prerequisites to be the AG, Fatihah pointed out  otherwise.

Stressing on the role of the AG that encompasses not only prosecution and legal conduct for government suits but also rendering legal advice on all relevant matters, she contended that Thomas would not be able advise the government on Islamic matters.

“This include advice on Islamic laws or other laws that affect the five pillars of our social contract under Articles 3, 152, 181 and Part III,” she said.

Civil and Syariah lawyer Mohd Fasha Musthafa also concurred with Fatihah’s view adding that the AG must also be well-versed in criminal laws and according to him, such a thing was not Thomas’ area of expertise.

In backing his view, Fasha cited Article 145 (3) of the constitution which pointed out that the AG is also the highest ranking public prosecutor in the country and is also known as the Public Prosecutor.

“Having said that, the AG must be an excellent criminal law practitioner. The knowledge and experience is needed for him to evaluate cases and exercise his discretion, to institute, conduct or discontinue any proceedings for an offence.

“Thomas is not known as a criminal lawyer. I’m not questioning his ability but his firm does not even list criminal law defence as area of practice,” said Fasha.

Thomas’ involvement with the late exiled-leader of Malayan Communist Party, Chin Peng, was also touted by detractors as one of the reasons Malaysians should object his appointment as the AG.

But where an Umno member raised Thomas’ role as Chin Peng’s lawyer in an unsuccessful litigation to bring back the communist leader to Malaysia as a reason to object his appointment, lawyers Muhammad Iza’an Azalan and Faidur Rahman Abdul Hadi highlighted Thomas’ personal sentiment for Chin Peng.

They were referring to Thomas’ September 17, 2013 obituary on Chin Peng where the latter penned glowing remarks about Chin Peng and that he would take his place as a major national icon once “the true history of Merdeka would be researched and published.”

“We are not attacking his role as Chin Peng lawyer but more on his personal sentiment for Chin Peng. Thomas can defend a rapist by the cannot go around saying he supports a rapist,” Iza’an argued.

In the event that Thomas’ appointment as the AG is realised, Fatihah and Faidur concurred that doing so could compromise the integrity of the AG Chambers when dealing with cases involving his firm.

They however, pointed out that appointing a lawyer as AG isn’t something that had not been done before. A case in point was the appointment of Tan Sri Mokhtar Abdullah.

The only difference was that Mokhtar became a judge before he was appointed as AG (1994 – 2000).

“Judges can be lawyers but once appointed he will have to give up practice. It will take a lot of trust, one that we Malaysians don’t have for Thomas to begin with,” was Fatihah and Faidur’s contention.

Prime Minister Dr Mahathir started to show his expected old and usual true colours of himself in the guise of ‘The New Malaysia’, by being recalcitrant in getting his away even at the displeasure of His Majesty Seri Paduka Baginda.

The Star story:

Dr M on Tommy Thomas impasse: We are holding on to our principles

NATION

Sunday, 3 Jun 2018
7:10 PM MYT

Read more at https://www.thestar.com.my/news/nation/2018/06/03/dr-m-on-tommy-thomas-impasse-we-are-holding-on-to-our-principles/#0yXCA0pOWTY21CKZ.99

PETALING JAYA: Tommy Thomas’ support for a secular state is not amongst the reasons why his candidacy for Attorney General was rejected by the King, said Prime Minister Tun Dr Mahathir.

Several other reasons for the impasse have been touted, amongst them  allegations that since Thomas has represented Finance Minister Lim Guan Eng in his corruption cases, he would not be an impartial AG.

“Lim Guan Eng is in the government and Finance Minister, there is no reason for Thomas to be Lim’s friend,” Dr Mahathir told the press after a state Pakatan Harapan meeting in Kedah on Sunday (June 3).

He said Thomas was Lim’s lawyer, but said at the same time Thomas has also represented Barisan Nasional leaders.

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“Yes, he is a lawyer for everybody even for Barisan Nasional, and is just making an income,” Mahathir said.

On whether Putrajaya will propose a new candidate if the King rejects Thomas’ candidacy, Dr Mahathir said they will follow the law.

“We do matters according to the laws and the Federal Constitution, but the King is acting on advice of the government,” he said.

“We are holding on to our principles,” he added.

Article 145 (1) of the Federal Constitution states that “The 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”.

Read more at https://www.thestar.com.my/news/nation/2018/06/03/dr-m-on-tommy-thomas-impasse-we-are-holding-on-to-our-principles/#0yXCA0pOWTY21CKZ.99

***********

Probably many younger Malaysia don’t realise this habit of Prime Minister Dr Mohamad to stubbornly go directly or indirectly against and challenge the role, position and powers of HRH Rulers, all and in sundry.

This is a serious stand off between Istana Negara and Putrajaya, in the administration of the Seventh Prime Minister and the Keeper of the Royal Seal already invited the brethren Rulers to convene tomorrow and sort this matter up.

What is very interesting is what Tommy Thomas himself said in 2007 about the decision of His Majesty Seri Paduka Baginda.

The power of Rulers in rejecting appointment

By Tommy Thomas himself, written 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 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.”

– by Tommy Thomas, 5th September 2007

***********

The is a group of lawyers who are going against the appointment of Tommy Thomas as AG.

The Star story:

Appointing Tommy Thomas as AG promotes cronyism, say lawyer groups

NATION

Monday, 4 Jun 2018
3:32 PM MYT

By Sira Habibuimage: https://www.thestar.com.my/~/media/online/2018/06/04/07/36/dsc_6414.ashx/?w=620&h=413&crop=1&hash=06A0360A0A060588AAE851718764F0CAA5437830

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KOTA BARU: Pakatan Harapan is promoting cronyism by insisting on appointing Tommy Thomas as the Attorney-General, say lawyer groups.

They said this is because Thomas is Finance Minister Lim Guan Eng’s counsel in his ongoing corruption case.

Concerned Lawyers for Justice (CLJ) secretary-general Fatihah Jamhari and Young Professionals (YP) chief executive Faidhur Rahman Abdul Hadi said Pakatan Harapan was going against its promise to restore the rule of law.

“The proposed appointment of Thomas only serves to perpetuate the notion that this new government has all the hallmarks of the old Barisan Nasional government when it comes to cronyism and abuse of power, as he is Lim’s counsel in the ongoing corruption case against him.

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“The conflict of interest could not be more manifest,” they said in a joint statement Monday.

On May 21, the High Court postponed Lim’s corruption trial as his lawyers planned to propose to the new AG to drop the corruption charge.

“If Tommy is appointed as AG, he will be put in a precarious position of respecting his office and the confidentiality privilege he has for his client.

“Why would anybody with an ounce of ethics want to place himself in such a position?” they said.

CLJ and YP added that an AG should also be an excellent criminal law practitioner.

“But Thomas is not known as a criminal lawyer … his firm does not even list criminal law defence as its area of practice,” they noted.

By virtue of Article 145(3) of the Federal Constitution, the AG is also the highest-ranking public prosecutor in the country, and is also known as the Public Prosecutor (PP).

“Knowledge and experience is needed for him to evaluate cases and exercise his discretion to institute, conduct or discontinue any proceedings,” they said.

They agreed that racial and religious backgrounds were immaterial.

“What truly matters is the fact that they must understand the constitutional and legal provisions as well as the subtle nuances of our local narratives and history.

“The AG is in charge not only of prosecution and legal conduct for the government suits, but also renderS legal advice to the Government on all relevant, legal matters as stipulated in Article 145(2).

“This includes advice on Islamic laws or other laws that affect the five pillars of our social contract under Articles 3, 152, 153, 181 & Part III.

“How can we expect a person who is not familiar with the peculiarities of our Constitution to work in the best interest of safeguarding the interests that lie in it?

“For example, Thomas had once clearly declared that Malaysia is a secular state, much to the insult of Article 3 of the Federal Constitution.

“He had also said in the past that Rukunegara has no legal bearing. This is on top of his personal feelings for Chin Peng, a communist, who was regarded as an insurgent to the country,” they said.

CLJ and YP also pointed out Tommy’s inability to converse well in the national and official language of Malaysia, pursuant to Article 152.

The powers of the Yang di-Pertuan Agong under Article 145 must be read harmoniously with the spirit of the entire Federal Constitution, taking into consideration of the oath taken by the ruler to uphold the sanctity of Islam as the religion of the Federation, they said.

Read more at https://www.thestar.com.my/news/nation/2018/06/04/appointing-tommy-thomas-as-ag-promotes-cronyism-say-lawyer-groups/#aiImIhTHj1a81mzJ.99

***********

Even yet to be appointed as the Attorney General, Tommy Thomas first duty of not moral obligation is to advise Prime Minister Dr Mahathir of his interpretation of the power of His Majesty Seri Paduka Baginda.

Not with standing PrimeMinister Dr. Mahathir’s to still stubbornly wish to go against the pleasure of His Majesty Seri Paduka Baginda, then Thomas ought to be wise enough not to accept, come what may.

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Published in: on June 4, 2018 at 16:30  Comments (1)  

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One CommentLeave a comment

  1. Definitely. There are many other candidates better or as suitable to be the AG, which makes one wonders that the prime reason Tommy Thomas was chosen is to undertake the huge task of prosecuting those involved in 1MDB and SRC to ensure a certain victory for the people of Malaysia. The plundering and embezzlement of public funds, institutional funds and forcing fiscal policies to regressively tax rakyat by a sitting PM ( 2009 to 2018 May 9) is totally unacceptable as it undermines every trust , every decorum, every integrity and every credibility of the office holder. If he is the best person to do it and all the thieves put behind bars, then the turmoil, drama and impasse that had surrounded an AG appointment may have been worth the moment.


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