General & Misc

Federal Constitution does not Bar Non-Malay from becoming AG, CJ, Finance Minister - Expert

Date: 06 March 2019; Type: Industry Updates; Source: Bernama

KUALA LUMPUR, Mar 6 (Bernama) - There is no provision in the Federal Constitution that states a non-Malay cannot hold any position in the administration, Parliament or the Judiciary, said prominent constitutional law expert Emeritus Professor Datuk Dr Shad Saleem Faruqi.

He said Article 153 encapsulates that the Federal Constitution’s spirit is one of accommodation, moderation and tolerance, adding that Article 153(5) subjects Article 153 to Article 136, which holds that all persons of whatever race in the service of the Federation shall be treated impartially.

“There is nothing in the Constitution to bar a non-Malay from holding any official position within the administration, parliament or the judiciary,” he said in his column ‘Reflecting on the law’ in The Star on Feb 28.

Shad Saleem apparently put his view forward in response to an opposition leader who was reportedly questioned on the appointment of non-Malays for the posts of the Attorney-General, Chief Justice and Finance Minister during a recent by-election in Semenyih.

The opposition leader also reportedly claimed that the appointment of the AG was invalid as the latter did not take his oath on an al-Quran.

Shad Saleem, in his column in the Star, said Article 153 also safeguards the “special position of the Malays and natives of Sabah and Sarawak”.

“Perhaps the critics forget that our current Chief Justice is from Tuaran, Sabah, is as much, if not more, of a Bumiputra than the critics themselves! Sabah and Sarawak will not be amused at such an attempt to marginalise the Bumiputras of these states,” he added.

Article 153 explicitly requires the Yang di-Pertuan Agong to safeguard “the legitimate interests of other communities”, he said.

Shad who is the current holder of the Tunku Abdul Rahman Chair at Universiti Malaya said that there have been many examples of non-Malays holding critical administrative, judicial and parliamentary posts in the country before.

Among them were Thomas Vernor Alexander Brodie (1955-1959) and Cecil M. Sheridan (1959-1963) who had been appointed as Attorney General while James Thompson had been appointed to the Chief Justice position from 1957 to 1963.

“As finance minister, we had Tun Tan Siew Sin, who graced the portfolio for 15 years,” he said.

Shad Saleem also rebuked claim that the AG is required to take an oath under the Holy Quran as absolutely false as only the oaths of the Yang di-Pertuan Agong and the Deputy Yang di-Pertuan Agong under the Fourth Schedule have Islamic, religious elements.

“All other oaths are religiously free and require fidelity to the country, the Constitution and the office to be occupied.

“It follows that there is no requirement of race and religion in the appointment of the CJ, AG or finance minister. It is a gross distortion of the Constitution and disservice to the country to fan racist or religious objections to these appointments,” he said in his column published by the English daily.

In the same column, Shad Saleem also answered some of the criticism that accused the AG of racial bias and inaction in investigating the death of fireman Muhammad Adib Mohd Kassim last year.

“This appears to be a malicious falsehood. An inquest has been ordered under Section 399(1) of the Criminal Procedure Code and the law is taking its course.

“Only those wishing to hide the truth and to capitalise on the tragic death will wish to sweep the facts under the carpet,” he said in his column in the Star.

On hate speech, he wrote in the column that in Malaysia it could be punished under several laws, including Section 505(c) of the Penal Code and Section 3 of the Sedition Act.

Shad Saleem said the Sedition Act makes it an offence to promote feelings of ill-will, hostility or hatred between different races or classes or religions.

He said statement that claimed the Malay community feared bias because the AG, chief justice and finance minister were not of their community paints racist colours on the Malay community and is an insult to all Muslims and Malays.

“It is some politicians and fringe groups that manufacture threats from imaginary enemies and whip up “ethno-populism and jingoist nationalism” to arouse distrust of “others”.

“We must all take a stand against such gutter politics and primordial tendencies. Our leaders must condemn hate speeches strongly, publicly and consistently,” he added.

MY Bernama

Asean LIP works with Bernama to bring you the latest Malaysian legal news. Bernama is the national news agency of Malaysia. You shall not reproduce the above/ attached materials in whole or in part without the prior written consent of the Publishers and/or Bernama. Neither the Publishers nor Bernama will be liable for any loss, injury, claim, liability, or damage caused directly, indirectly or incidentally to errors in or omissions from the above/ attached materials. The Publishers and Bernama also disclaim and exclude all liabilities in respect of anything done or omitted to be done in reliance upon the whole or any part of the above/attached materials. The access to, and the use of, Asean LIP and contents herein are subject to the Terms of Use.

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