In an article entitled, ‘Is the new AG choosing his briefs like a private lawyer? [26 June 2018]’ the ex-Chief Justice, Tun Abdul Hamid Mohamed, suggests that the current Attorney General is unsuited to his job.

He says, ‘When Thomas accepted the post of Attorney General, like it or not, by law, [he] is also the public prosecutor. He cannot say he only wants to be Attorney General but not a public prosecutor.’

He continues: ‘If he (the Attorney General) did not agree that by becoming an Attorney General you will also be the public prosecutor, why did he accept the post?’

And he concludes his piece by firing a bullet he has been holding back.  It is his pièce de résistance. He deploys it with a devastating effect : ‘I am sure many people would be surprised to read article 145 of the Federal Constitution, which states’—and then he quotes—

‘145(1)     The Yang di-Pertuan Agong shall, after consultation with the Judicial and Legal Services Commission, appoint from among the members of the judicial and legal servicean Attorney General, who shall be a person qualified to be a judge of the Federal Court.’

So the writer points to two requirements before an AG can be appointed: first, the King has to consult ‘the Judicial and Legal Services Commission’ about the appointment.  Next, His Majesty must appoint the AG ‘from among the members of the judicial and legal service’.

And then he concludes his analysis by this explosive statement:‘Note that the AG must come from the judicial and legal service. There must be a reason for it. If Mahathir knew that Thomas would not do prosecution (sic),  would he have submitted his name for appointment as Attorney General?’

This implies that the Prime Minister has completely misled His Majesty the King.  He implies that those who had advised the King, and the Prime Minister had missed the 12,000 pound elephant in the room—that the AG must come ‘from among the members of the judicial and legal service’.

Is the former Chief Justice right in what he says?

Let us see.

On 24 June 1994 the Constitution (Amendment) Act 1994 [Act 885], amended the very Article that the ex-CJ relies on—that is to say Article 145 (1). It was amended to read as follows: –

‘145(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.’

This means that the previous twin requirements of the King having to consult the Judicial and Legal Services Commission, and the need for the AG to be selected from only the Judicial and Legal Services— had been categorically removed.  That was 24 years ago.

A lifetime.

It amazes me that so deplorable an oversight can be made on the reading of the Constitution.  When an ex-CJ can misquote an entire clause of the Constitution, would that not mislead the man on the street? He’d be walking around thinking, ‘I think my PM does not know the law, and I don’t think his legal advisors are doing a good job. These guys have all misled the King. What is wrong with these people?’

Which makes one wonder: which Constitution was the ex-Chief Justice referring to?

At the rear of the Federal Constitution, there is a List of Amendments. Perhaps the ex-Chief Justice should go look at it. He will then chance upon Act 885.

That is only one of the reasons for this article. There is another.

All areas of law are difficult

In a section entitled ‘Why shy away from prosecution?’  the ex-CJ says: ‘Prosecution is the most difficult, laborious, time-consuming and tiring of all legal work. Tommy Thomas has never experienced it.  Is that the reason why he’s shying away from it?’

To that he adds this casual statement: ‘Defending a criminal case is much easier, as you can win a case merely on the mistake made by the prosecution which, even if you did not see it, the judge will catch.’

He then concludes: ‘No lawyers (sic) in private practice have seen a criminal investigation file, and they have no experience in prosecution at all. Thomas is no exception.’

In suggesting that prosecution of offences is the ‘most difficult area of legal practice’, the ex-CJ relies for support on anecdotal evidence.  This is simply not true.  Reality is something else.

Every area is difficult.

The ex-Chief Justice’s comparison of one kind of work with another is comparing two dissimilarities.

Defending a criminal charge is not a walk in the park.  Defence lawyers will fail miserably if they do not possess wide array of legal talent and non-legal skills.

One stands up, alone and unaided, against the massive machinery of the Government; a machinery that the judiciary will not easily ignore.  Try defeating that machinery.  What is the record of convictions to acquittals? Which is greater, convictions or acquittals?  The answer is obvious.

A defence counsel’s duty is not a mere collation of defence material. Apart from regular visit to the clients in prison, a lawyer practising criminal law has to assist the family during psychologically trying times.  There is the arrest.  The remand process.  Then bail. Trial.  Conviction. Appeal.  Before all that there is the sleuthing. Going around looking for material that would contradict the prosecution’s story.  Meeting people.  Getting experts to view the scene. Measuring distances. Timing walking and running speeds. There are various other procedures that make up criminal practice.  And these are not cheap. And most accused are not well-heeled.  The work is not easy. And, eventually, when the case comes to trial, the exercise of skill, and deep-research is difficult.

Although I am a commercial lawyer, I have done numerous criminal cases, right from the magistrates courts to the Federal Court, including capital offences. It was not easy going. I drew my inspiration from the likes of the late David Marshall, T.T. Rajah, and Karpal Singh.

Perhaps the next time you walk into a legal firm that does corporate work, you should ask the corporate lawyers how easy their job is. Corporate lawyers lack sleep. Clients call them all day, at all hours, asking for an amendment of this, that or the other clause of a 50-page commercial document.  The document itself will change its character from hour to hour. It is worse when the client is in a time zone that is completely opposed to the local one. Or where one is constantly having to comply with US regulations for a Taiwanese party concluding a deal in London.

Civil litigation lawyers have no easy time either. During my pupillage, my master, who was 52 at that time, arrived at chambers promptly at 6 a.m. He always left late. I recall going home at 3 a.m.

When I had my own firm, it didn’t get any better. One judge finished his trial at 3.00 p.m. on a Wednesday, and ordered oral arguments on Thursday at 9.00 a.m. We worked until 4:30 a.m., went home to change, and drove straight back to court. Arguments commenced at 9.00 a.m. and went on well after 2.00 p.m.  After the court rose, my partner and a legal assistant had to support me to the car. I could not walk. This was not is an isolated incident.  Nor was I was subject to any harder life than any other litigation lawyer.

Commercial litigation is  torture. When you are next at the Federal Court, observe commercial counsel.  See if they are bleary eyed.

But of all the areas of the law that I have worked on, international commercial arbitration takes the cake. There was a matter we argued in Munich, Germany. We flew in on a Sunday night, had a brief, but groggy stop-over in Qatar, got into Munich, and snatched a few hours of sleep.  In a matter of hours, we were up before panel of three European arbitrators. They were sticklers for time. They operated on at ‘chess clock’ basis. Every party had 16 hours to present its case. You made your own choices. You could choose to examine your own witnesses, cross-examine your opponent’s witnesses, or ask for two hours of oral arguments. Every time you opened your mouth, the clock started, and time was measured. When your 16 hours were up, you simply had to stop. We flew back after four exhausting days, only to receive e-mail instructions that written arguments were to be filed in short order. Jetlag or no, everyone worked.

So don’t tell me about fatigue, hard work, microscopic examination of evidence, level of difficulty and so forth.

Most lawyers at the Bar, and most lawyers at the Attorney General’s Chambers are workaholics. The intensity and duration of the hours they put in is rarely understood by clients. In the case of AG Chambers no one in the Cabinet is going to give you pat in the back. You don’t hear members of the Bar complaining about their labours, or their lack of sleep.  Similarly you will hear no rumblings from my colleagues at the AG’s Chambers.  They are too busy working.  They are short-handed, lack help and equipment, and have little time for research.

A final word about the Honourable AG , Mr Tommy Thomas. It is said that he knows nothing of criminal law.  I am not so sure.  He is one of the hardest working lawyers I’ve ever known. Criminal Law is like any other area of law. If you spend enough time in it, you will get to master it. I’m quite sure our new Attorney General, being a brilliant lawyer he is, will be up to speed in a jiffy.