Agong has discretion, it’s inconceivable that former Attorney General Tommy Thomas would be dragged to court for ‘acts in office’!
It’s clear where Caretaker Prime Minister Ismail Sabri was coming from in a statement on the Special Task Force Report (STFR) on 19 areas of concern in “My Story: Justice in the wilderness”, the controversial memoirs of former Attorney General Tommy Thomas which has become a runaway bestseller. The book has infuriated the government and the Attorney General’s Chambers (AGC).
You can access the full report which has now been declassified here …
and soft copy of the book here . . .
https://www.dropbox.com/s/2gbwdajt7g8jtt5/Tommy%20Thomas.pdf?dl=0
The Bar Council should focus on law education reform to help strengthen the rule of law, the basis of the Constitution, and the discipline of lawyers. Law reform is the work of the lawmakers.
Ismail Sabri wants the STFR used in attacking Pakatan Harapan (PH) during the run-up for GE15 on Sat 19 Nov 2022. Mahathir Mohamad, in jumping on the bandwagon, swore that he did not know that Thomas was “biased” until the memoirs were released.
The Caretaker PM, in his heart of hearts, may want Tommy Thomas in jail for virtually insulting and humiliating Malay lawyers — read AGC — and Malay government. The proposed charges cannot of course mention these two issues. It would be about running foul of various laws.
The STFR may have been rendered academic on appointments to the judiciary and other issues i.e. there’s no live issue. Agong has discretion on several related issues. That has overtaken Thomas’ alleged wrongdoing highlighted in the STFR.
From Equanimity to Tranquility
The STFR, in criticising Thomas elsewhere, noted that the High Court had set US$130m as the reserve price for the sale of Equanimity, the yacht owned by fugitive fund manager Jho Low. Thomas sold the yacht for US$126m to the Genting Group, at his house, after discussing the deal for 30 minutes. Ironically, the new owner didn’t even inspect the yacht before buying it. The Admiralty Court in Kuala Lumpur approved the offer by the Genting Group on Wed 3 April 2019. The Equanimity was renamed Tranquility.
It’s difficult to see what charges can be brought against Thomas for the sale of the yacht on a willing seller/willing buyer basis and approved by the court.
In any case, the proposed charges against Thomas, it must be stated at the very outset, are easier said than done. It’s inconceivable that Attorney General Idrus Harun, or his successor after GE15, would go after a predecessor and create a dangerous precedent “for acts in office” beyond the Asian Arbitration case law. A precedent was already created on the immunity issue when a former Director of Asian Arbitration sued Thomas, as AG, under Article 145 of the Federal Constitution for “abuse of power”.
Digression from Tommy Thomas
In digressing a little, we have already seen that a dangerous precedent was initiated by Thomas when former Prime Minister Najib Abdul Razak was jailed on Tues 23 Aug 2022 for “acts in office”. We have seen that the conviction wasn’t perfected in law. It was a fatal flaw in law when the Federal Court did not arrange legal representation for Najib before jailing him. Indeed, the court did not pay even lip service to the rule of law. It fell back on the letter of the law, by itself, and acted with impunity.
Thomas’ take on the AGC are by no means anything new. The public perception remains that except for judicial review not originating from the Industrial Court, the AGC can only win judicial review cases. Criminal cases, Thomas feels, may not be the AGC’s forte.
It’s new that the former AG, in disparaging the AGC, hired lawyers in private practice as Ad Hoc Prosecutors. Allegedly, according to the STFR, he didn’t follow procedures. In a contradition in terms, the STFR proposed that guidelines be drawn up and the AG comply with them when hiring lawyers in private practice.
I happen to be in the know, albeit not from the horse’s mouth, that former AG Gani Patail was equally contemptuous of the AGC. In the year that he was sacked, he reportedly hired 200 law graduates. It appears that he reversed the formula and hired 198 local Indian and local Chinese graduates and only two Malay lawyers. I stand corrected if what a young lawyer told his father, after being hired, may have taken liberties with the truth.
The issue here may not be ethnicity, although it looks that way, but passion for law and mastery of the English language. Anyway, we have said enough on the issue!
Attack on Malay Government
The former AG’s “below the belt” attack on the idea of Malay government does a distinguished lawyer like him no credit. He may have momentarily lost focus on the issues and instead degenerated into attack on ethnicity. The government remains about serving the people. The proof of the pudding is in the eating. The government can be faulted here but not for its ethnic make-up. Ideally, the government should reflect the demography of the nation. However, we are not living in an ideal world.
If there’s only one local Indian in the Federal Cabinet, one Orang Asal, two local Chinese and the rest are Malay, so what? One of the two great principles underlying the Cabinet System is consensus i.e. no voice against. Even one Cabinet Minister can cause gridlock in government i.e. unless the Cabinet has been reduced to a rubber stamp by a Dictatorial Prime Minister.
The other great principle is collective responsibility. Under this principle, Najib for example should not have been dragged to court alone on numerous cases involving alleged abuse of power. There’s no proof that Najib degenerated like Mahathir into a Dictatorial Prime Minister.
Elephant in the Room
It’s unfortunate that both the government and Thomas ignored the elephant in the room: the quality and quantity of those in law needs a lot to be desired. That has affected the rule of law, the basis of the Constitution.
It’s an open secret that the government pays lip service to the rule of law and acts with impunity. That has seen a rise in the number of political cases in court. Again, the court does not pay even lip service to the rule of law, especially in political cases. It falls back on the letter of the law, by itself, and acts with impunity.
Immediate Pardon
In adding insult to injury, Ismail Sabri self-servingly declared that the government will not recommend Immediate Pardon for Najib. We can recall that Opposition Leader Anwar Ibrahim was Pardoned within a week, after GE14 on Wed 9 May 2018, based on Prime Minister Mahathir Mohamad’s recommendation. In fact, Anwar was even released from jail while awaiting Pardon.
Mahathir’s recommendation has been disputed by former Chief Justice Abdul Halim in a Blog posting and any number of people and may also be still in court.
Note: At presstime, Tommy Thomas was reported to have filed a suit against the government on the STF. The writer is of the opinion that there’s no reason for the court to interfere with government. The former AG should have gone to the Constitutional Court for declaration on the matter. However, declaration would not be remedy. – NMH
About the writer: Longtime Borneo watcher Joe Fernandez keeps a keen eye on Malaysia as a legal scholar (jurist). He was formerly Chief Editor of Sabah Times. He is not to be mistaken for a namesake previously with Daily Express. References to his blog articles can be found here.
The points expressed in this article are that of the writer and do not necessarily reflect the stand of the New Malaysia Herald.
Longtime Borneo watcher Joe Fernandez has been writing for many years on both sides of the Southeast Asia Sea. He should not be mistaken for a namesake formerly with the Daily Express in Kota Kinabalu. JF keeps a Blog under FernzTheGreat on the nature of human relationships.
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