BREAKING NEWS! . . . PM Ismail Sabri’s outburst on AG Tommy Thomas further clouds picture on tenure . . .

AG Tommy Thomas failed to reform law education.

https://www.newmalaysiaherald.com/2022/03/23/pms-outburst-on-ag-tommy-thomas-further-clouds-picture-on-tenure/

https://www.newmalaysiaherald.com/2022/03/25/ag-tommy-thomas-failure-to-reform-law-education-affected-agc/

BREAKING NEWS! . . . PM Ismail Sabri’s outburst on AG Tommy Thomas further clouds picture on tenure . . .

The Prime Minister warned that action will be taken against the former AG for comments in his Memoirs.

COMMENTARY and ANALYSIS . . .

It wasn’t immediately clear whether, and how, Prime Minister Ismail Sabri would be able to make good on his veiled threat to act against former Attorney General Tommy Thomas for allegedly “errant” comments in the Memoirs, “My Story: Justice in the Wilderness”. See here . . . https://www.thevibes.com/articles/news/56663/tommy-thomas-will-face-the-music-if-we-find-any-transgression-pm-vows

Ismail may have been playing to the gallery at the Umno General Assembly on Sat 19 Mar. However, thunderous applause or no thunderous applause, it’s safer to assume that Ismail wasn’t mincing his words. The Prime Minister was more than likely to “plunge the knife” into Thomas at the slightest opportunity he gets.

The man sees instant stardom ahead as a great hero of the people, albeit among the mostly kampung crowd in Umno, if he acts on Thomas’ alleged sins of commission and omission. It can’t be said that the Umno people love the former AG especially after several party leaders were dragged to court during his tenure. They smell blood!

Already, the former AG is embroiled in a jurisdiction issue on contempt of court involving the Coroner’s Court. However, on a point of clarification, the court did not cite Thomas for contempt of court. See here . . . https://www.freemalaysiatoday.com/category/nation/2022/03/21/appeal-filed-to-determine-if-coroner-has-contempt-of-court-power/

No pushover . . .

Having said that, the former AG may be no pushover. He knows his rights. It’s evident in the fact that he refused to turn up before the Special Task Force investigating the controversial remarks in the Memoirs.

He said the Task Force was not law and was unconstitutional. Of course, it’s not law and we should look at conventions i.e. the working of the Constitution. We can’t say that everything must be about law. The Task Force comes under the prerogative and discretionary powers of gov’t and management. No court would consider them unless abuse can be proven. In this case, based purely on ethics whether a Code exists or otherwise, it may be more about Thomas virtually abusing others, not the Task Force degenerating into abuse.

Thomas ignored the Attorney Generals in Sabah and Sarawak who consider themselves equal to him under the Malaysia Agreement 1963 (MA’63). MA’63 envisages Malaysia as an Equal Partnership of Sabah, Sarawak and Malaya.

The High Court of Borneo (Sabah and Sarawak) and the High Court of Malaya have equal but separate jurisdictions.

Jurisdiction . . .

No case from one High Court can be transferred to the other and vice versa. If the same case is in both High Court, one has to be withdrawn on jurisdictional grounds. If a case is in only one High Court, and lacks jurisdiction, it must be withdrawn before being filed in the other.

The language of the High Court in Borneo is English, it’s Bahasa in the High Court of Malaya, with translation in English attached. Strange but true, it keeps Google busy. If anyone ever read these translations, they would discover that Google translations on law are the pits. In the Borneo Territories, it’s the reverse. Lawyers may attach Google translations in Bahasa for a bench which may not be that familiar in the English language. All these sum up the politicisation of law and the court. These are issues that Thomas failed to address.

Often, the dedicated focus on law ignores the true perspective on the nature of human relationships and how they are, can be and should be regulated, if necessary. They may well be regulated by law, before the court and/or out of court, in court, or beyond the court, and even beyond law as with the Agong.

Nothing is an issue unless it’s in the media, in the court of public opinion, in the social media, enters Debate in Parliament and Public Forums, is a matter of complaint lodged anywhere, a police report has been filed, the Magistrate’s court has been notified on it, a case is in court or being settled out court, or it’s a matter before the Agong.

A File, once opened on issues, can only be kept away if there’s closure. Generally, if a controversy lasts more than two weeks in the media, it will not go away unless there’s closure.

Lesser mortal . . .

In adding insult to injury, Thomas literally humiliated Task Force Chairman J. C. Fong from Sarawak as a lesser mortal, beneath his dignity, and certainly deserving nothing but contempt. In falling back on media reports over the years, it was implied that “Fong may be somewhat lacking in strength of character”. The former AG may be also insulting the person/s who appointed Fong viz. de facto Law Minister Wan Junaidi Tuanku Jaafar, and probably the PM as well. I stand corrected.

It was the same attitude, “insulting, humiliating and demeaning” towards the Attorney General’s Chambers (AGC), that got Thomas into trouble with the gov’t.

In fairness, the AGC can’t be faulted. Apparently, they held back and probably even worked against the AG every step of the way, and with good reasons too. They saw him as no leader and no manager. The Gurus tell us that management is about serving the people — i.e. AGC in this case — and in return, obtaining the mandate of power from them over them.

No power . . .

If we connect the dots, Thomas may have had no power as AG and probably found it difficult to function at the AGC. Also, he appeared to lack leadership skills. Apparently, according to lawyers in the know, he failed to demonstrate vision, mission, objectives, and goals, and didn’t initiate activities in line with vision, if any.

We can imagine Mahathir advising Thomas shortly after GE14 on Thurs 10 May 2018: “Thomas, I can recommend the Agong appoint you as AG. I can’t force the AGC to respect you and comply with your instructions. It will depend entirely on you. Win their hearts and minds. Don’t come crying here and complain about your subordinates. I can’t interfere. I won’t take sides.”

In keeping things in perspective, it may be recalled that the grapevine, in political circles and among the legal fraternity, went into whispers that former AG Gani Patail from Sabah was much harsher than Thomas on the AGC, albeit privately, and appeared to get away with it.

Defied gov’t . . .

Gani, unlike Thomas, defied gov’t quietly and insisted some months before he was sacked that only the brightest and best would be recruited for the AGC. In private, according to sources, he was ashamed that the AGC could only win judicial review cases.

In a contradiction in terms, the legal fraternity felt that Thomas didn’t appear to care who the AGC hired every year, about 200 lawyers. He preferred to mock his subordinates openly, after he hired them, for not being among the brightest and best.

The incident that pushed Thomas over the edge, and made him see red, was the AGC dragging 12 allegedly LTTE (Liberation Tigers of Tamil Eelam) sympathisers and mostly DAP members to court on sedition charges. It happened while the former AG was away on a break for two weeks. He was not informed.

It was clear from furious remarks in the media that he intended to act against unnamed officers for “insubordination”. It was the LTTE episode, according to the consensus in the legal fraternity, that made the AG go berserk on the AGC in his Memoirs.

Elephant in the room . . .

In any case, AG Tommy Thomas’ observations on the AGC wasn’t rocket science. He could have seen the elephant in the room, i.e. the lack of reforms on law education, but didn’t. Instead, he picked on the AGC, probably for no rhyme or reason and/or matters beyond their control. It was like flogging a dead horse, for want of a better term, or trying to squeeze water from a stone. After years of gov’t neglect, competency was the missing dimension at the AGC. It was an open secret.

Thomas has gone on public record as saying that he didn’t know that the AGC was virtually the pits until he got there. The AGC was a bureaucratic approach to law which didn’t help gov’t lawyers “look good” in court. If Thomas is somehow punished eventually for his tenure as AG, it can be for four reasons viz. he was the “expose” on the AGC, he broke the unwritten Code, “jaga muka” (save face), he did not help gov’t lawyers keep up appearances and, horror of all horrors, he was Rambo and the Terminator combined i.e. a one-man demolition team striking sheer terror into the hearts of the AGC.

The AGC as a creature was a manifestation of gov’t policies which, on second thoughts in Putrajaya, covers all critical disciplines as well, under the all sweeping quota system which plagues public universities.

Thomas reportedly failed to act on law reforms and reforms on law education. He allowed the quota system, akin to the caste system, to stand in the way of reforms on law education.

The private universities wanted the proposed Common Bar Examination to replace the Certificate in Legal Practice (CLP). It was an exercise in futility as it was buried by the quota system. The public universities continued to be exempted from the CLP.

Malaysia could have taken the cue on reforms on law education from England and Wales which did away with the LLB as a must to be Advocates and Solicitors. The British introduced separate pathways for both Disciplines. Also, non-law degree holders were accepted, provided they went through a six month to 18 months law conversion course.

Former Federal Court judge, Gopal Sri Ram, advocated that Malaysia recognise the best law schools in India and Pakistan. Thomas didn’t give him a hearing on the matter.

Talent pool . . .

It was all about broadening the talent pool beyond the LLB. Thomas, holding an LLB for which he probably slogged for years, may have understandly been biased in favour of the traditional law degree even if it has since been discovered as somewhat lacking in relevance in the court room.

The University of London (UoL) has articulated well what ails — read AGC — those in legal practice. The LLB, being an academic programme, could only be used in teaching. It was not suitable for the court room. Just for the record, the UoL is the only foreign university which has an Assistant Director at the Malaysian Examination Syndicate in Putrajaya.

It’s not known whether Thomas ever reached out to the UoL in Putrajaya to gather ideas for reforms on law education. It has been suggested for example, but not by the media, that senior court reporters with no degree be admitted to the High Court as Advocates only provided they go through a law conversion course incorporating elements from the English Bar. That would have helped widen the talent pool.

“It’s the gov’t, the Bar, legal fraternity and public perceptions that demand lawyers have the LLB,” cautioned the UoL in the law module. “It’s not possible for anyone to know law.”

“Law, ultimately, remains the power of language.”

This is where the AGC, and the legal fraternity falls apart. Besides, their English language was suspect. English was the valid version in law of the Federal Constititution, the Malaysia Agreement 1963 (MA’63), the language of the court in the Borneo Territories — Sabah and Sarawak — and the superior courts.

AGC and Bahasa . . .

Thomas faulted the AGC in the majority for knowing only Bahasa. He didn’t speak the language beyond the rudimentary, the excuse being that he had been away in Canada for many years, apparently “disgusted” at the 1st Mahathir Administration from 1981 to 2003. Mahathir himself, given a second chance in 2018, recalled the “disgust” after Thomas was appointed AG.

The UoL advises an “unconventional approach” on reading law viz. reading as widely as possible especially the Constitution and case law, media reports on court cases, attending court, getting a Mentor, and practising writing skills. The court, reminded the UoL, does not decide in cases but merely Rules on decision already taken in Submissions by parties in dispute on issues in conflict. The language in law must be brilliant.

“Think like a lawyer but write like a journalist,” the university advises students. “There are no right or wrong answers in law exams. We will first mark for English, next look for evidence of wide reading. Law is a reading subject.”

If the English language is weak, continues the university, never do law without going for tuition in the language. “Law is the power of the English language.”

Bundle of contradictions . . .

It isn’t easy to read Thomas. He appears a bundle of contradictions.

He may have correctly advised de facto Law Minister V. K. Liew against mentioning the MA’63 in proposed amendments to the Federal Constitution on “restoring the rights of the Borneo Territories”. In law, like the Magna Carta in England, MA’63 exists and stands by itself, whether incorporated in the Federal Constitution, or otherwise.

Liew told the media that the AG cautioned against “creating complications”.

We may know sooner rather than later whether the amendments which went ahead recently under Wan Junaidi and AG Idrus Harun has “created complications”. The amendments are likely to come before the Federal Court for interpretation on the intentions of the framers of the Constitution, MA’63 and Parliament.

Ironically, the same man signed a long letter to the Paris lawyer of purported Sulu heirs who sought a Declaration in recent days at an ex-parte Arbitration in France. It was uncharacteristic of the man. The speculation among the grapevine was that the AGC wrote the letter before Thomas resigned on Fri 28 Feb 2020. If so, there should be another Task Force on this matter as well. See here . . . https://www.newmalaysiaherald.com/2022/03/15/najibs-outrage-on-tommy-thomas-letter-to-sulu-heirs-must-be-viewed-seriously/

Not genuine heirs . . .

According to a media report, the eight claimants in Paris were not the genuine heirs “but people out to make money”. See here . . . https://www.nst.com.my/opinion/columnists/2022/03/781688/issue-has-nothing-do-sovereignty-sabah

In hindsight, the AG should have kept a “discreet silence”. If push comes to shove, the genuine heirs would have no choice but return to the High Court of Borneo.

It was the High Court that Ruled in 1939 that nine heirs of the late Sulu Sultanate were eligible to receive the annual RM5, 300 purse from the gov’t.

The British North Borneo Chartered Company rule in Sabah was followed by the British colonial Administration after World War II and Malaysia after 16 Sept 1963. The High Court rejected territorial claims by the Sulu heirs and declared that “sovereignty resides with the people”.

Author: fernzthegreat

Joe Fernandez holds a honours degree in management, majoring in economics, and has opted from academia in law to being a jurist. He was trained professionally on the job as a journalist. He's a longtime Borneo watcher, keen on the history and legal aspects of Malaya's presence in Sabah and Sarawak. He teaches the English language privately and has emerged as a subject matter expert in public examination techniques.

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