The changing face of Malaysian justice

An impasse between Malaysia’s newly elected Pakatan Harapan ruling coalition and the country’s influential ethnic Malay royals over the appointment of a new attorney general has underscored the potential for resistance to the new government’s reform agenda.

Tommy Thomas, a veteran lawyer and constitutional law expert, was the unanimous choice of Harapan’s leaders and component parties for the post. His nomination to be the nation’s top lawyer, however, was opposed by some because the candidate, an ethnic Indian Christian, is not from the Malay Muslim majority.

Thousands signed an online petition opposing his appointment on ethnic and religious grounds, a stance supported by the opposition Islamist party Parti Islam Se-Malaysia (PAS), which argued that a non-Muslim would not be capable of advising the government on matters pertaining to Islam.

Prime Minister Mahathir Mohamad sent a letter last month to Sultan Muhammad V, the country’s constitutional monarch, or Yang di-Pertuan Agong, advising the ruler to dismiss Mohamed Apandi Ali, the attorney general appointed by scandal-plagued former premier Najib Razak, and to appoint Thomas as his replacement.

Though the Agong is constitutionally required to act on the advice of the prime minister, legal experts say, Malaysian media sources reported that the palace had initially opposed Thomas’ nomination and preferred that a Malay Muslim fill the post. That stance was supported by other Malay royals who comprise the Council of Rulers.

However, Mahathir was adamant that his administration would not submit any other candidate for the position and maintained that the nomination of a non-Muslim was in accordance with the law. The Malaysian Bar expressed alarm over the impasse, which some felt could spiral into a constitutional crisis, and called on the Agong to appoint the nominee as advised by the premier without delay.

Sultan Muhammad V consented to Mahathir’s choice in the early hours of June 5, bringing an end to the two-week impasse. Anwar Ibrahim, de facto leader of the Parti Keadilan Rakyat (PKR), the party with the greatest number of parliamentarians in the ruling coalition, had been granted an audience with the Agong to resolve the issue on the evening on June 4, reports said.

It appears that Anwar, recently royally pardoned and released from prison on politicized sodomy charges, may have played a decisive role in persuading the monarch to reverse course. A statement issued by the palace sought to allay concerns that Malay rights and the status of Islam would be undermined with a non-Malay-Muslim at the helm as the nation’s top legal adviser and public prosecutor.

Malaysia’s legal system operates under a dual court structure with a federal secular legal system in the form of civil courts and sharia courts that exclusively govern the conduct of Muslims in the domain of personal and family law. Malaysia’s nine hereditary Malay sultans are the constitutional heads of Islam in their respective states.

Legal experts say the Attorney General’s Chambers would play no role in the sharia courts’ administration of Islam. There is no legal requirement that the attorney general be a Malay Muslim, and the country has had three prior non-Malay Muslims serve in the position. Since 1977, however, all seven attorneys general have been Malay Muslim.

Observers have been quick to compare this episode with Mahathir’s frequent clashes with the country’s Malay monarchs during his earlier 22-year stint as prime minister, during which he pushed through constitutional amendments that withdrew the sultans’ absolute power to veto state and federal legislation, and curbed their legal immunity.

In this case, many took to social media to praise Mahathir for progressive thinking in his selection of Thomas – a critic of Mahathir’s previous term in government – as the nation’s next top lawyer. Harapan supporters regard him as a skilled litigator and capable of navigating the complex corruption cases now under investigation, including the multi-billion dollar 1Malaysia Development Berhad (1MDB) scandal.

Local media noted he has penned two books of essays, entitled “Anything But The Law” and “Abuse Of Power”, which grapple with issues of the constitution, religion, economics and politics during the previous regime.

Since coming to power last month in a historic election victory that ended the six-decade rule of the once-dominant Barisan Nasional (BN) coalition, Harapan has arguably assembled the most diverse cabinet the country has ever seen, with women and ethnic minorities occupying key posts such as deputy premier and finance minister.

In stark contrast to BN, which functioned as an ethno-religious coalition of race-based political parties, Harapan is a pluralistic multi-ethnic alliance based on the equality of component parties despite their unequal representation in parliament. While many regard the change as overwhelmingly positive, Malaysia’s politics is still deeply polarized.

Harapan won 47.9% of the popular vote at last month’s election. The BN took 33.8% while the PAS-led Islamist Gagasan Sejahtera opposition coalition took 16.9%, meaning over 50% of the electorate did not support Harapan. As such, observers expect strong conservative resistance to systemic reform in the months ahead.

Popular opposition to a non-Malay Muslim taking the reins of the Attorney General’s Chambers is emblematic of Malaysia’s new political climate, one where race and religion are now the dominant opposition narrative. Many Malaysians regard conservative Islam and ethnic Malay supremacy as central to their empowerment and livelihood.

Analysts expect the United Malays National Organization (UMNO), the lynchpin party of the BN coalition and now main opposition party, to adopt a more extreme stance on issues of race and religion. It may also formalize an alliance with the Islamist PAS party grounded in ethno-nationalism and religion capable of mounting a serious challenge to Harapan.

PAS, the most vocal opponent of Thomas’ appointment, currently controls two state governments in the rural northeastern states of Terengganu and Kelantan. In an ironic twist, the former PAS-led governments of both states had previously hired Thomas as their legal representative in lawsuits against national oil giant Petronas.

Thomas, 66, a civil litigator in cases as varied as administrative law, banking, finance, corporate, and commercial law, is the figure Malaysians will now look to with the expectation of prosecuting those responsible for corruption at 1MDB, which was established and overseen by former premier Najib.

Najib and his wife, Rosmah Mansor, are key suspects in the graft scandal which allegedly saw billions of dollars pilfered in an embezzlement racket. Armed police seized and carted off luxury items and US$29 million in cash during recent raids on properties linked to Najib. Both he and his wife have recently been questioned at the offices of Malaysia’s anti-graft body.

Outgoing attorney general Apandi, who was singled out by Mahathir on the campaign trail for allegedly hiding wrongdoing pertaining to 1MDB, could also be in the firing line. Appointed by Najib following indications that the previous attorney general, Abdul Gani Patail, was moving to prepare an arrest warrant for the premier in connection with the scandal, Apandi quickly cleared Najib of any wrongdoing.

That move came despite international investigations into 1MDB-related money laundering underway in at least six countries, including the US, Switzerland and Singapore. US investigators and the Swiss attorney general have accused Apandi of failing to cooperate with their investigations.

Najib and Rosmah are barred from leaving the country while the Harapan government investigates various allegations of money-laundering and past abuses of power. Bringing the 1MDB scandal to a just conclusion is a key imperative for Malaysia’s new reform-minded government and newly appointed Attorney General Thomas is widely viewed as up to the job.