AGC bureaucratic approach to law didn’t help gov’t ‘look good’ in court.

If AG 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.

Thomas has gone on public record as saying that he didn’t know that the AGC was virtually the pits until he got there.

AGC was a bureaucratic approach to law which didn’t help gov’t lawyers “look good” in court.

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.

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 . . .

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 . . .

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”. – New Malaysia Herald

About the writerLongtime 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.

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