The Malaysian Insight

THE attorney-general has no power over the shariah court and neither does he have a constitutional duty to give advice on shariah matters, said constitutional law expert Dr Abdul Aziz Bari.

The government’s naming of lawyer Tommy Thomas as the next A-G has raised fears from certain Malay-Muslim critics but Aziz said the matter should not be politicised.

“Many people don’t understand the facts. That’s why they are getting carried away with the issue (of the person’s religion).

“The main role of the A-G, as stated in the constitution, is to advice the government on legal matters.

“The A-G has no power over the shariah court and the military court. He has nothing to do with shariah matters,” he told The Malaysian Insight.

Article 145(3) of the federal constitution states that the A-G’s powers are for any proceeding for an offence “other than proceedings before a shariah court, a native court or a court-martial”.

Asked about concerns that a non-Muslim A-G would not be able to advise the Malay rulers on shariah matters, Aziz said the government’s legal adviser never had a constitutional role to provide such advice.

“If before this the rulers had used the advice of the attorney-general, it would have been in an ad hoc manner only. It was a practice that started in the last 10 years,” he said.

Aziz, who is also the DAP Tebing Tinggi assemblyman, added that this would not be the first time Malaysia has had a non-Muslim and non-Malay attorney-general.

It was more important that the A-G came from among the members of parliament so that the person could answer to the cabinet and to Parliament, Aziz said.

“I think there are many among the MPs who qualify. Some of them have had more than 20 years’ experience as lawyer, such as Hanipa Maidin, R. Sivarasa, Baru Bian and Ngeh Khoo Ham. These are some of the names I remember.”

The Pakatan Harapan government’s choice of Thomas for A-G has stirred up a firestorm of debate in the last two days over his race, religion and alleged conflict of interest in cases he has taken.

Thomas is a Malayalee Indian and a Christian, and has also represented Finance Minister Lim Guan Eng in his corruption cases.

Shariah lawyer Musa Awang said he was most concerned about the conflict of interest if Thomas serving as A-G to the government of which Lim was a member.

“There have been non-Malay, non-Muslim A-Gs in the past… that is not really a problem. But in Thomas’ case, his credibility and independence are issues, such as whether he can be fair as A-G in the corruption charges against Lim,” said Musa, who is president of the Shariah Lawyers’ Association of Malaysia (PGSM).

Non-Muslim A-Gs in the past were Thomas Vernor Alexander Brodie (1955-1959), Cecil M. Sheridan (1959-1963) and Athi Nahappan (1970-1974). 

Musa said the A-G should be selected from the judicial and legal service.

Prime Minister Dr Mahathir Mohamad submitted only one name, Thomas’, to the Yang Di-Pertuan Agong, for the A-G post.

Under the constitution, the king is to appoint the A-G on the advice of the prime minister.

However, the Conference of Rulers disagreed and will meet tomorrow on the matter. – June 4, 2018.