LETTER | Abraham Lincoln once described democracy in the now famous phrase, “Government of the people, by the people, for the people”. That has been the standard description of a democracy throughout the world for almost 200 years now.

The validity of the above description is once again tested in Malaysia with regard to the appointment of our new attorney general (AG).

The attorney general is the principal legal adviser to the government of Malaysia. The attorney general is also the highest ranking public prosecutor in the country.

It is the AG who will advise the new government on legislative amendments needed to implement some of its key election promises. And they have made many promises, some of which need legislative framework and muscle.

The AG is also to advise the government on how to navigate through crucial legal issues that it might face (renegotiation of ECRL and HSR contracts for example). Needless to say, he is also the person who will prosecute those who have breached the laws of the land, whoever they may be.

Therefore, this is a key appointment at a critical juncture in our history. It must be someone whom the present government has full confidence in.

The present government has put that confidence in Tommy Thomas, a senior and reputable lawyer. It has been reported that the palace is not in favour of the appointment. When questioned about the impasse, our prime minister, in his wisdom, answered that this issue will be resolved in accordance with our constitution.

Yes, it should and must be resolved in accordance with our constitution. What does our constitution say about the appointment of the AG? Article 145 of the Federal Constitution provides:

“(1) The Yang di-Pertuan Agong 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.”

It is settled law that whenever the word “shall” is used, it means must. With all due respect, there is no room for discretion here. It has to be the person ‘advised’ by the prime minister to the Agong.

Who then is qualified to be appointed as AG (same requirement as a Federal Court Judge) under our constitution?

Article 123: “A person is qualified for appointment under Article 122B as a judge of the Federal Court, as a judge of the Court of Appeal or as a judge of any of the High Courts if-

(a) he is a citizen; and

(b) for the ten years preceding his appointment he has been an advocate of those courts or any of them or a member of the judicial and legal service of the Federation or of the legal service of a State, or sometimes one and sometimes another.”

Clearly, the individual proposed is qualified under our constitution and has the confidence of the elected government. He is a citizen and has been an advocate for more then 10 years. The Federal Constitution does not impose any other conditions. Why then introduce new conditions now?

The decision of the people, expressed through its cabinet and prime minister must, therefore, be respected. Those who are not in favour of his appointment have given various reasons as to why he should not be appointed as the AG. I am not going to go through it here. I am sure the cabinet would have deliberated on all those points and weighed in on all the pros and cons. They have deliberated and have decided on Tommy Thomas.

That decision should be respected. Ultimately, the government is answerable to the people for its choices but at least allow it to make those choices. Therefore allow the wishes of the people, by the people for the people, expressed through its elected government, manifest itself.

Let our constitutional process unfold as it was meant to be.

The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.