This article first appeared in Forum, The Edge Malaysia Weekly on July 16, 2018 - July 22, 2018

Recent reforms made by the Pakatan Harapan (PH) government have significantly altered constitutional conventions in Malaysia. This, in turn, has transformed the country’s constitutional landscape. Three significant constitutional changes can be seen in the appointments of the deputy prime minister, the finance minister and the attorney-general (AG).

Constitutional conventions are basically customs, habits and/or common practices that regulate the conduct of parliament, the government and the courts. Notwithstanding the fact that conventions do not possess the force of law (considering that the courts do not enforce them), they are still part of the Federal Constitution since these practices are considered “law” under Article 160(1). As political practices, the flexibility and evolution provided by constitutional conventions reflect the local realities of the day.

Unlike written laws, constitutional conventions may be unilaterally altered by the government of the day without going through any formalities. In Reference Re Amendment of the Constitution of Canada, the Supreme Court of Canada decided that “as long as the persons concerned regarded them (selves) bound by the [practice], a single precedent with a good reason may be enough to establish the [convention]”.

Two examples serve to illustrate how the UK has altered its conventions using this method. In 1975, the Labour government unilaterally altered the convention of collective responsibility in regard to a crucial decision on its membership of the EU.

The second example relates to the office of the deputy prime minister in the UK. The existence of the deputy prime minister is a convention that is dependent solely on the prime minister of the day.

Appointment of deputy prime minister

In Malaysia, the Federal Constitution is silent on the qualification of the prime minister and deputy prime minister in terms of their gender and race. However, the convention since the country gained independence has been that the deputy prime minister should be a Muslim male. This practice started with the appointment of Tun Abdul Razak Hussein on Aug 31, 1957, and was in place until the appointment of Datuk Seri Ahmad Zahid Hamidi.

But when Datuk Seri Dr Wan Azizah Wan Ismail was appointed the deputy prime minister on May 21 this year, that convention went out the window.

Finance minister

Since 1974, the portfolio of finance minister has been held by a Malay, thereby creating a convention to that effect. This is evident from the fact that the Ministry of Finance was helmed by Tun Hussein Onn (1974 to 1976); Tengku Razaleigh Hamzah (1976 to 1984); Tun Daim Zainuddin (1984 to 1991); Datuk Seri Anwar Ibrahim (1991 to 1998); Tun Dr Mahathir Mohamad (1998 to 1999); Daim (1999 to 2001), Mahathir (2001 to 2003); Tun Abdullah Ahmad Badawi (2003 to 2008) and finally, Datuk Seri Najib Razak (2008 to May 2018).

The appointment of Lim Guan Eng as the finance minister in May this year put an end to the 44-year convention.

Attorney-general

It has been widely reported that Tommy Thomas is the first practising lawyer to be appointed as AG directly from the Malaysian Bar.

This provides an interesting example of where a legal duty (imposed under the Federal Constitution) has been transformed into a political practice.

Before 1963, the AG had to be appointed from the judicial and legal services. The previous Article 145(1) of the Federal Constitution states that “the Yang di-Pertuan Agong shall, after consultation with the Judicial and Legal Service Commission, appoint from among the members of the Judicial and Legal Service an attorney-general, who shall be a person qualified to be a judge of the Federal Court”.

This requirement was abolished by the Constitutional Amendment Act of 1963. Nevertheless, the practice of appointing the AG from within the judicial and legal service continued, thus establishing a constitutional convention. This is evidenced by the past AGs who were appointed before June this year. The previous AGs were either promoted from the judicial and legal service or had worked in that circle before.

By appointing an AG from the Bar, the PH government altered a constitutional practice that had lasted 54 years.

In the final analysis, the changes made to these constitutional conventions should not be frowned upon. Instead, they should be seen as important steps towards promoting a more robust, consistent and coherent implementation of the Federal Constitution.

Mark Goh Wah Seng teaches Constitutional Law and Malaysian Land Law in a private university in Malaysia

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