COMMENTARY and ANALYSIS by Joe Fernandez:
If push comes to shove, and former AG Tommy Thomas is dragged to justice on his Memoirs, he may emerge as the “sacrificial lamb,” paving the way for much needed reforms – long overdue – in the court system, the judiciary, the Attorney General’s Chambers (AGC) and law education.
The BIG IF is whether Thomas meets with a Task Force on the Memoirs and whether the police drag him to court on the same matter. Thomas in court will make headlines around the world and bring Malaysia under international scrutiny for all the wrong reasons.
Thomas met with the police after 134 reports on the contents of the book, according to then Bukit Aman CID director Huzir Mohamed in Feb last year.
Lawyer Sangeet Kaur Deo and another lawyer, unnamed, accompanied Thomas last year to the police station, according to media reports.
Investigation papers opened so far cover alleged criminal defamation, breach of the Official Secrets Act (OSA), tendency to incite the public under the Sedition Act.
Lawyers have argued that it’s redundant for the former AG to meet the Task Force. Redundant, or otherwise, Thomas can still meet with the Task Force.
Alternatively, he may find that Malaysia is too small a place for him, the gov’t, AGC and the police.
In that case, he may conclude that leaving Canada in the first place was a serious error of judgment, indeed even a glaring character flaw, and that he should go into exile there, perhaps never to return, except in a coffin to join his ancestors in the Syrian Christian burial ground in Malaysia.
Thomas may have permanent residence status in Canada, mostly virtually a gigantic iceberg in North America. It’s not known whether he has taken up Canadian citizenship and holds dual citizenship, with or without permission of the authorities concerned. There’s no law against dual citizenship in Canada. Malaysia only allows dual citizenship, as announced in Parliament, for female citizens married to foreigners and residing abroad.
The former AG allegedly insulted all and sundry in “My Story: Justice in the Wilderness”.
Litany Of Complaints
According to media reports, the Memoirs was a litany of complaints on the appointment of judges, excessive intervention by the executive arm of government in the judicial system, and selective prosecution.
Thomas has made many “valid points”, brilliantly crafted, in a letter to the chairman of the Task Force which had its first meeting on Thurs 23 Dec last year. He was explaining to Fong Joo Chung, the Sarawak Legal Adviser and former Sarawak Attorney General, why he sees no reasons to meet with the Task Force.
He sees Fong as a lesser mortal than the AG in Putrajaya. Under the Malaysia Agreement 1963 (MA’63), inherent and implied where not stated, Sabah, Sarawak and Malaya are Equal Partners in Malaysia which isn’t Federation.
It can be argued that the AG in Kota Kinabalu, Kuching and Putrajaya have equal status in law.
To digress a little, the High Court of Borneo (Sabah and Sarawak) and the High Court of Malaya have equal and separate jurisdiction.
Let’s not go into the contents of the Thomas letter to Fong. These are just opinions, not law. Only the court can declare law.
Rushing To Court
The former AG is unlikely to take the contents of his letter to the court for its Ruling. No court will interfere in the prerogative and discretionary powers of gov’t and management unless, and very rarely, reluctantly and grudgingly, abuse can be proven.
The Task Force isn’t law.
Conventions, the working of the Constitution, isn’t law.
The court of law is only about law.
The court walks a fine line on “abuse of powers” as the Doctrine of Separation of Powers presides over the three arms of gov’t viz. legislative, executive and judiciary.
They are separate and equal.
Jurisdiction, authority and power sees them acting as checks and balances on each other to ensure openness, transparency and public accountability on matters of public concern and public interest.
The media, as a public service organisation, is the 4th Estate, i.e. outside the Three Estates, upholding Free Press, Free Speech, Free Association, Free Assembly, and the Right of Reply on matters that involve public concern and public interest.
Of course, this is easier said than done.
Thomas may probably be reconsidering his Options in the wake of media reports that the police have also begun probing the alleged contents of the Memoirs. If the former AG cooperates with the Task Force, it’s unlikely the police would summon him as well on the same matter. If he continues to decline to meet with the Task Force, the police can and may summon him especially if he’s going to be dragged to court on the matter.
“My Story: Justice in the Wilderness” is Thomas’ 3rd such book.
His first two books are “Anything But the Law (Essays on Politics & Economics) and Abuse of Power (Selected Works on the Law and Constitution) which were launched simultaneously in 2016.
Both books, according to wikipedia, are collections of essays written over 34 years on the Federal Constitution, law, politics and economics and that published by online portals and by the Malaysian Bar.
It’s not known whether the first two books are also considered as containing insults. – New Malaysia Herald
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’s 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’s, and do not necessarily reflect the stand of the New Malaysia Herald.