PETALING JAYA: The idea that the next Attorney-General (AG) should be Malay-Muslim so that he can advise the Yang di-Pertuan Agong on Syariah matters, among other concerns, goes against what is drafted in the Federal Constitution.
"Article 145(3) puts any proceedings before the Syariah courts outside the AG's powers," said constitutional law expert Prof Datuk Dr Shad Saleem Faruqi (pic).
That particular clause states, "The Attorney-General shall have power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for an offence, other than proceedings before a Syariah court, a native court or a court-martial.
"The argument that appointing a non-Muslim AG is unconstitutional is, to say the least, incredible and self-serving," Dr Shad told The Star.
"Admittedly The AG must be a versatile person. In the present circumstances, the most important quality is that he or she must be committed to constitutionalism and have a thorough grasp of our basic law, the Federal Constitution," he added.
The Government has nominated lawyer Tommy Thomas for Attorney-General, but Yang di-Pertuan Agong Sultan Muhammad V reportedly has reservations about the choice because Thomas is not a Malay-Muslim.
However, "under Article 3(5) of the Constitution, a Council can be created by law to advise the King on Islam," said Dr Shad.
"So there is no problem if the AG is a non-Muslim," he added.
He also pointed out that Malaysia has had non-Malay AGs in the past.
These include Thomas Vernor Alexander Brodie (1955-1959) and Cecil M. Sheridan (1959-1963) when the country was the Federation of Malaya.
However, all seven appointments since then have been Malay-Muslims.
"Nothing in the Federal Constitution bars a non-Malay from holding any post, other than that of the King, the Sultans, posts in the Royal Malay regiment, and if it's in the state's constitution, the post of mentri besar," he added.
Dr Shad, who is also Tunku Abdul Rahman Professor of Law at Universiti Malaya, said that other than the positions listed, all Malaysians have equality before the law as per Article 8 of the Federal Constitution.
Constitutional expert Gurdial Singh Nijar echoed Prof Shad's opinion and said that the King's discretion in the matter was only a formality.
"It is ultimately up to the government of the day to choose whoever it is perceives is the most qualified person for the job.
"Article 40(1)(a) says that where the King is to act on the advice of the PM, 'he shall accept and act in accordance with such advice'. Thus, this leaves no room for discretion. It is a mandatory requirement.
"The consultation requirement is satisfied if there is mere consultation. In other words, consultation outcome is not binding on the PM or the Government," said Gurdial.
Meanwhile, constitutional lawyer New Sin Yew said the whole controversy about whether the next AG should be Malay-Muslim is a "non-starter" to begin with.
He also thinks the whole issue has been rather unfairly politicised by certain parties
"Under the Constitution, there is no such requirement that the AG must be of a certain race or religion. Quite clearly, the drafters of our Constitution, our forefathers, had the wisdom to decide that this is a job that the best man or woman should have," he said.
According to New, the Constitution does not have any requirement that the AG be of a certain race.
"It's based purely on the contents of one's character, on merit instead of the colour of a person's skin.
"We are in the kind of age where we should move past looking at the person's race, especially with such an important appointment," he added.
New also finds it quite "troubling and worrying" that the first criteria looked at by those who oppose Thomas' appointment is the colour of his skin.
He also quoted lawyer Datuk Seri Ambiga Sreenevasan Twitter post on Sunday (June 3): "The concept of race and religion is so alien to choosing a professional one has confidence in. Does it matter when we need the best doctor or accountant?"
"Like Ambiga said, when you go to a surgeon, you don't say you want a Malay, a Chinese or whatever. You just want the best surgeon to do the job.
"It's the same thing here and the same thing for any job and profession. We're in 2018, for goodness sake!" New concluded.
The Government said it will stick to its nomination of Thomas for AG, despite the Palace having reservations about the choice.
The Malay Rulers will meet on Tuesday (June 5) to deliberate on the appointment.