CONSTITUTIONALISM requires respect for the letter and spirit of the Constitution by citizens as well as the institutions of the state, especially the latter. It is sad to note that in the last few months, constitutionalism and democracy took a battering at the hands of some whose job it is to protect and defend the basic charter.

Dirtiest election: The GE14 result was an exhilarating development for democracy in Malaysia. At the same time, GE14 was the dirtiest of all elections since Merdeka. The Registrar of Societies turned a blind eye towards Umno’s violation of its own Constitution. She refused to register the Pakatan Harapan coalition and deregistered Tun Dr Mahathir Mohamad’s Parti Pribumi Bersatu Malaysia.

Under Article 114(2), the Election Commission must enjoy public confidence. Instead, it resorted to massive gerrymandering and malapportionment, and ignored citizens’ complaints. It defiled Opposition billboards. A Rantau state seat candidate was refused entry into the nomination centre. Tian Chua was declared disqualified. During the run-up to the election, blatant acts of bribery by both sides went uncensured.

Tian Chua’s attempt to seek judicial review was turned down by the High Court. All other court cases to challenge the misconduct of the EC failed. The EC delayed the issuance of many results where the then Opposition was winning. In several recounts, Barisan Nasional emerged triumphant. The EC submitted the official results to the King only on the afternoon of May 10.

Appointment of PM: It is believed by many that under Article 40(2)(a), the appointment of the Prime Minister is at the absolute discretion of the King. With all due respect, His Majesty’s discretion comes alive only if there is a hung parliament or the winning party is divided on its choice of leader. But if a party or coalition secures an absolute majority and is united behind a leader, a constitutional monarch has no discretion. Palace attempts to find an alternative leader and its repeated postponements and delays will not go down kindly in constitutional history.

AG’s appointment: The Attorney General is the ruling government’s solicitor and confidant. He must be chosen by the political executive and not the Yang di-Pertuan Agong or the Conference of Rulers. Article 145 mandates that “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”. The King can counsel and delay but if the PM insists on his nominee, the monarch is bound by advice in accordance with Article 40(1) and (1A).

Role of Conference of Rulers: Many appointments, like those of judges, have to be referred to the Conference of Rulers for consultation but the appointment of Cabinet ministers and the Attorney General has no such consultation requirement. However, under powers vested by Article 38(2), the Conference may deliberate on any matter it thinks fit, including the suitability of the Attorney General. Even if this is so, the Conference only deliberates and advises. It does not decide. The choice of the Prime Minister is binding on the King.

AG’s race and religion: There is no prescription in the Constitution of the AG’s race, religion, region or gender. In the past, we have had non-Muslim AGs. Except in relation to the Sultans, the Malay regiment and the Mentris Besar in the nine Malay states, the Constitution is blind to race and colour. Under Articles 8(1), 8(2) and 136, the rule of equality before the law applies.

The argument by some that as the King is the head of the religion of Islam, therefore the AG must be a Muslim, is a thinly disguised attempt to misuse Islam to deprive non-Malays and non-Muslims of any place in the corridors of power. Contrary to what some religious preachers preach, Islam is perfectly capable of inclusiveness and such twisted arguments bring Islam a bad name.

We have had two non-Muslim AGs before: Thomas Vernor Alexander Brodie (1955-59) and Cecil M. Sheridan (1959-63). Even the Muslim ones were not experts in Islam and they relied on their 1,800-strong team to draft opinions and laws on all matters including the syariah. As to counselling the King on matters of Islam, Article 3(5) provides that Parliament may by law constitute a Council to advise the King in matters relating to Islam. A parliamentary initiative on this matter to legalise institutions like the Malaysian Islamic Development Department (Jakim) and define their jurisdiction is necessary. As to prosecution, Article 145(3) excludes the Syariah courts from the AG’s jurisdiction.

Conventions: A cunning argument has been proffered that a convention exists that all top positions must be occupied by Muslims. No such convention exists. In any case, conventions cannot violate the explicit provisions of Articles 8 and 136. Conventions exist to fill gaps in the law, not to trump the law.

AG and Parliament: Pakatan’s undertaking that the AG must be answerable to Parliament is achievable by appointing the new AG as one of the 44 appointed Senators.

AG and criminal law: Opinions have been expressed that the AG must be a criminal litigator. Tommy Thomas is an expert in constitutional law. With all due respect, constitutional law and criminal law overlap. The Constitution’s Article 5 on personal liberty, Article 7(1) on retrospective criminal laws, Article 7(2) on double jeopardy, and Articles 149-151 on subversion and emergency, are intimately connected with the criminal process.

In any case, the Pakatan government intends to separate the AG from the public prosecutor. The newly appointed AG will preside over this magnificent transformation. His expertise in constitutional law may reverse the trend of the last few decades where judges, officers of the AG’s Chambers, the police, politicians and administrators sidestep the imperatives of the Constitution.

If the new AG can restore the Constitution to the pedestal on which it was placed when Malaya began its tryst with destiny, if he can advise his officers to regard our Constitution as our chart and compass and sail and anchor, he will have the gratitude of a large part of the citizenry.

Emeritus Professor Datuk Dr Shad Saleem Faruqi is holder of the Tunku Abdul Rahman Chair at Universiti Malaya. He wishes all Muslims the blessings of Eid. The views expressed here are entirely the writer’s own.