PETALING JAYA: Amid the furore about appointing a new Attorney-General, a former judge has said that it was vital for the government to get someone with a rounded knowledge of civil and criminal law.
“Otherwise, the government is headed for legal disaster,” said former Federal Court judge Gopal Sri Ram, because “criminal charges will have to be brought very soon against those who had violated laws under the previous government”.
Sri Ram made his comment amid a growing controversy arising from speculation about the appointment of constitutional expert Tommy Thomas to replace Mohamed Apandi Ali, who remains Attorney-General but has been instructed to take 30 days’ unrecorded leave.
Sri Ram dismissed talk in the media and the legal fraternity about a constitutional crisis or impasse in view of speculation that the nomination of Thomas had met resistance at the highest levels.
However, he suggested that the Conference of Rulers should have been advised about any nomination of a successor to Apandi.
Sri Ram said a new Attorney-General could not be appointed unless Apandi resigned or was removed from office. Constitutionally, Apandi remained the AG, and continued to occupy the office.
He contended that the Yang di-Pertuan Agong would be required to act on advice to relieve Apandi of his position.
However, the Prime Minister and Cabinet could have made their recommendation to the Conference of Rulers, as Article 38 of the Federal Constitution provided the Rulers with a function of approving appoinments at federal level, which would include that of Attorney-General.
Once the Rulers’ Conference approved, the name of the candidate could be sent to the Yang di-Pertuan Agong with advice to make the appointment. “Again, that advice must be followed.”
Sri Ram also spoke about questions that had been raised about whether the nominee had sufficient knowledge of shariah law or criminal law.
He said an Attorney-General, even if a non-Muslim, could engage an expert to assist him to advise the King on matters of shariah law, however, “it is advisable for the prime minister to have an AG competent in criminal and civil law”.
He said that “until the constitution is amended to split the advisory role of AG from that of Public Prosecutor, requirement of a rounded knowledge of criminal law, procedure and practice is a must,” he said.
In addition, the AG must also be a person who could command the respect and confidence of members of the Attorney-General’s Chambers, he said. Besides being legal adviser to the government, the Attorney-General is the administrative head of the legal and judicial services and oversees appointments.
A lawyer, Muhammad Rafique Rashid Ali, said Apandi should know that the right thing for him was to resign. “It will not look right for the government to sack him for defiance,” he said. “As of now, there is no constitutional crisis or impasse but Apandi will be a contributing factor if he is adamant about remaining in office.”
“The AG holds office at the pleasure of the king but he must resign without hesitation when the government wants to make a new appointment,” he added.
Apandi was appointed in 2015 on a three-year contract that expires on July 27. However, his contract was renewed in April for three years. While he is on leave, the Solicitor-General, Engku Nor Faizah Engku Atek, is performing the duties of Attorney-General pending a resolution.