JUNE 2 — A few hours ago, The Malaysian Insight carried a story that the YDPA has not acted on and has asked Tun Mahathir to reconsider his choice of renowned lawyer, Tommy Thomas, as the Attorney General (AG) of Malaysia.

It was reported that “Instead, there have been messages relayed from the palace, seeking that PH drop its choice of Thomas. Dr Mahathir was asked to consider several candidates, including a former high court judge and a serving court of appeal judge. The Malaysian Insight understands that other Malay rulers have also supported the King’s position, adamant that the A-G should be a Malay/Muslim.”

Regardless of the accuracy of such reports, it is important that Malaysians recognise the YDPA’s role in the appointment of key offices prescribed by the Federal Constitution — including the AG.

Malaysia is a constitutional monarchy. A constitutional monarchy is a form of government where a King or Queen acts as the head of state — but strictly within the parameters of a constitution. The monarch is therefore is not vested with direct executive powers to govern a country. The monarch acts as a ceremonial symbol of unity instead. This is similarly practiced in the United Kingdom, Spain & Thailand.

What does our Constitution say about the appointment of AG?

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

Nonetheless, because we are a constitutional monarch, 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.

In Datuk Seri Anwar bin Ibrahim v Perdana Menteri Malaysia & Anor [2010] 3 MLJ 174, our apex court considered Article 40(1A) and held:

“The Yang di-Pertuan Agong 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 Yang di-Pertuan Agong in the said article of the FC 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 Yang di-Pertuan Agong in matters of appointment and revocation of ministerial posts is imperative in order to realise the role of collective responsibility of the Cabinet Ministers.”

The YDPA may only exercise his discretion in very limited areas prescribed under Article 40(2): the appointment of Prime Minister, withholding of consent to a request for the dissolution of Parliament, etc.

By extension, the Council of Rulers also does not need to be consulted beforehand or have a say in the appointment of AG. 

There is further no constitutional requirement that the AG must be of a particular race or professes any specific faith. This is unlike most State Constitutions in Malaysia which constitutionally require the Mentri Besar to be a Malay and to profess the religion of Islam. 

Hence, as long as the Prime Minister advices to appoint as AG a candidate whom the Prime Minister himself believes is qualified to be a judge of the Federal Court, the YDPA is bound to act on such advice.

Otherwise, the very core of our nation’s governing blueprint as a constitutional monarchy will be shattered. It will be a dangerous precedent if the clear demarcation of roles between the monarchy and Executive is blurred. Be it the common man or the royal palaces — the Federal Constitution must always be the guiding scripture for all on how we function as a democratic nation.

* Lim Wei Jiet is an Advocate and Solicitor of the High Court of Malaya and Deputy Chairperson of the Bar Council’s Constitutional Law Committee

* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.