THE CONFERENCE OF RULERS AND JUDICIAL APPOINTMENTS
The recent controversy over the proper constitutional role of the Conference of Rulers in respect of judicial judicial appointments has has prompted me to research research the subject. The critical words in Article 122 B (1) of the Federal Constitution are “after “after consulting the Conference of Rulers” . Article 122 B (1) in its entirety entirety reads:-
“The Chief Justice of the Federal Court, the President of the Court of Appeal and the Chief Judges of the High Courts and (subject to Article 122C) the other judges of the Federal Court, of the Court of Appeal and of the High Courts
” (my emphasis)
The starting point is the history of the making of the Federal Constitution. The Supreme Court in Teoh Eng Huat v. Kadhi, Pasir Mas [1990] [1990] 2 MLJ 300, 301 held that in interpreting the Constitution, regard can be made to history, including i ncluding the recommendations of the Reid Commission and other historical instruments preceding Merdeka, and the subsequent establishment of Malaysia on 16th September September 1963. The draft draft Constitution Constitution of the Federation of Malaya prepared by the Reid Commission had no role for the Conference of Rulers in appointing appointing judges. judges. Article 114(2) of their their draft read: “The “The Chief Justice of the Supreme Court shall be appointed by the Yang diPertuan Besar and other judges shall be appointed by him after consultation with the Chief Judge.” Indeed, the only function given to the Conference of Rulers in the Reid Draft Constitution was to elect the Yang di-Pertuan Besar pursuant to Article 27(1). Shortly after the publication in February 1957 of the Report of the Reid Commission, a Working Party comprising representatives of the British Government, the
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Malay Rulers and the Alliance Coalition was appointed to review the Reid Report to ensure that their recommendations were generally acceptable to the people of Malaya. Working Party met 23 times between 22nd February
and 27th April 1957.
The
The London
Conference of 13th to 21st May 1957 followed, again with representatives from the same 3 parties. Thereafter, the British and Malayan Governments simultaneously issued a White Paper in June 1957 containing the Constitutional Proposals for independent Malaya. It is stated in Paragraph 4 of the White Paper that the draft Constitution recommended by the Reid Commission had “undergone changes both of substance and of form”.
Among the
major changes made by the Working Party are those dealing with the Conference of Rulers.
The White Paper proposals were accepted by the British and Malayan Governments,
and
the
draft
Constitution
accompanying
it
became
the
“Merdeka
Constitution” of the new independent nation of Malaya, coming into effect on 31 st August 1957. In a speech given to the Federal Legislative Council in Kuala Lumpur on 10th July 1957 when moving the White Paper, Chief Minister Tunku recognized the considerable amendments to the recommendation of the Reid Commission relating to the Conference of Rulers, and then stated:
“The Yang diPertuan Agong will normally act in accordance with the advice of the Cabinet but it is proposed that he should be given powers to act at his discretion in certain matters; for example, he may act in his discretion in appointing the Chief Justice, after considering the advice of the Prime Minister and views of the Conference of Rulers”. The extended role of the Conference of Rulers is found in Article 38, : Clauses (2) and (3) refer to its functions other than electing the Yang di-Pertuan Agong (which was the only function given to it under the Reid Commission). Article 38 (6) of the Constitution is highly significant. It reads:“The members of the Conference of Rulers may act in their discretion in any proceedings relating to the following functions, that is to say:(b)
the advising on any appointment.”
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Thus, when the Conference of Rulers sits as a collective or collegiate body to advise on appointments or to be consulted, each Ruler acts in his own discretion.
In
consequence of such discretion, it is foreseeable that the Conference of Rulers may not reach an unanimous decision on appointments: in such event by virtue of Paragraphs 8 and 9 of the Fifth Schedule to the Constitution, a majority decision of the Rulers is sufficient. Among the other appointments for which the Conference of Rulers shall be consulted are the Auditor-General (Article 105(a)), the Election Commission (Article 114 (1)) and the Education Service Commission (Article 141 A(2)). But none of the appointments compare in importance to that of the 4 Heads of the 4 Superior Courts constituting the higher Judiciary, the third branch of Government. I therefore turn to Part IX of the Constitution dealing with the Judiciary. It is significant that the Conference of Rulers is not concerned with two types of judicial appointments. First, under Article 122 (1A), “the Yang di-Pertuan Agong acting on the advice of the Chief Justice” may appoint any person who has held high judicial office in Malaysia as an “additional” judge of the Federal Court. Secondly, under Article 122 AB(1) “the Yang di- Pertuan Agong acting on the advice of the Prime Minister, after consulting the Chief Justice of the Federal Court” may appoint Judicial Commissioners. The common feature of these two kinds of judicial appointment is that by their nature their office is intended to be temporary, and therefore the Conference of Rulers does not have to be consulted. The position alters when one considers Article 122 B. It should be noted that Clauses (2), (3) and (4) in Article 122 B also require the Prime Minister to consult the Chief Justice, the President of the Court of Appeal and the Chief Judge of each of the High Courts as the case may be so that the Prime Minister can take into account the views expressed by the Heads of the 4 Courts with regard to judges appointed to their respective Courts. In the case of the appointment of the Chief Judge of Sabah and Sarawak, the Prime Minister is also required to consult the Chief Ministers of those states. Further, under Article 122 B (6) the Yang di-Pertuan Agong, acting on the advice of the Prime Minister, given after consulting the Chief Justice, may determine the order of precedence of the judges between themselves in the Federal Court, Court of Appeal and the High Court. Hence, the striking theme of the 6 Clauses in Article 122B is the need to consult various parties with regard to appointments, and the order of precedence. In other words, consultation is the hallmark of Article 122B. The reality is that the Prime Minister, as head of the Executive, is not in a position to know the personalities and character of the judges whose number now well exceeds 50.
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Therefore, substantial weight must be given to the views of those consulted.
In these
circumstances, one can understand the constitutional requirement that the fruits of consultation must be carried through in the advice. Insofar as Article 122 B(1) is concerned, the appointing authority is the Yang di-Pertuan Agong acting as the “executive authority of the Federation” pursuant to Article 39 of the Constitution. That the Yang di-Pertuan Agong is acting as a Constitutional Monarch when making judicial appointments under Article 122 B(1) is made clear not only by the words “…acting on the advice of the Prime Minister” which appear in that Article, but also by virtue of Article 40 (1) and (1A).
It should be recalled that the eminent constitutional
historian Walter Bagehot stated more than 100 years ago that a constitutional monarch enjoys 3 rights: “The right to be consulted, the right to encourage, the right to warn”, and advised that “a King of great sense and sagacity would want no others”. In Malaysia, in addition to the Yang di-Pertuan Agong being a constitutional monarch acting on the advice of the Prime Minister, as the elected head of the Executive, and thus conforming to Bagehot’s wisdom, the Conference of Rulers exists as an independent and separate institution under the Federal Constitution, performing constitutional functions which may elevate it to a fourth branch of government together with the Executive, Legislature and Judiciary, in Montesquieu’s doctrine of separation of powers. With regard to Article 122 B(1) the critical words are “……..after consulting the Conference of Rulers”. The Yang di-Pertuan Agong, as a Malay ruler himself, is also a member of the Conference of Rulers and in such capacity (and not as King) has a discretion of his own in commenting and advising on judicial appointment: see Articles 38 (6)(b) and 40 (2). What is not expressly set out in Article 122 B(1) is the extent and scope of consultation that constitutionally must take place between the Executive (acting through the Prime Minister) and the Conference of Rulers. What is evident is that consultation must be real, substantive and meaningful. It cannot be “lip service” consultation or in form only. It is neither the intention nor the spirit of the Constitution that the Conference must “rubber stamp” every candidate proposed by the Prime Minister. On the contrary, the Conference is entitled to bring its independent opinion on the matter. Article 122 B(1), like any other constitutional provision, must be interpreted generously, broadly, widely and “sui generis, calling for principles of interpretation of its own, suitable to its character” and not as an ordinary Act of Parliament: see Lord Wilberforce in Minister of Home Affairs v. Fisher [1980[ AC 319 (PC) , and accepted as good law in Malaysia in the landmark case of Dewan Undangan Negeri Kelantan c. Nordin Salleh [1992] 1 MLJ 697 [SC].
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Although the word used in Article 122 B(1) is “consulting” , it can be argued that it may be akin to approval, agreement or consent by the Conference of Rulers. Thus, the language employed in Article 122 B(1) must be contrasted with the words used in Article 66 (4) and (4A) which read:(4)
“The Yang di-Pertuan Agong shall within thirty days after a Bill is presented to him assent to the Bill by causing the Public seal to be affixed thereto.
(4A)
If a Bill is not assented within the time specified in Clause 4, it shall become law at the expiration of the time specified in that Clause in the like manner as if he had assented thereto.”
Thus, Article 66 (4) and (4A) expressly state the legal consequences of the King not assenting to Bills passed by both Houses of Parliament: they become law within the 30-day period allotted to the King to give his assent, regardless of whether such assent is actually given. In the case of Article 122 B (1) there are no similar express words. Hence, the legal consequences of failure to consult the Conference of Rulers or the Conference not approving a candidate submitted by the Executive are not specified therein, thereby suggesting that all the authorities referred to in that Article must approve a particular candidate. Thus, in my opinion, the Conference of Rulers is entitled to reject a candidate for appointment submitted to it if a majority of Rulers deem him unsuitable for the constitutional office of judge. What may be beyond their constitutional right to be consulted is to repeatedly reject several candidates for a single position which would then remain vacant for a substantial period of time resulting in a constitutional impasse. No doubt, the good sense of those involved in the selection process would ensure that such an eventuality does not occur. The checks and balances system under Article 122 B(1) was put in place so that no one authority has sole monopoly over judicial appointments.
In order for the
constitutional system to work efficaciously some “give and take” has to take place. Consensus is the objective; not brushing aside of the views of the major actors.
The
importance of the constitutional right of the Conference of Rulers to be consulted on judicial appointments under Article 122 B(1) is further demonstrated by Article 38 (4) which declares that no law directly affecting “the privileges, position, honour or dignities of the Rulers shall be passed without the consent of the Conference of Rulers”. In my opinion, the
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right to be consulted under Article 122 B(1) constitutes a “privilege” or “position” within the meaning of Article 38 (6). Hence, the right of the Conference of Rulers to be consulted thereunder cannot be removed or diminished without their consent. In one of his appeals to the Court of Appeal, Anwar Ibrahim applied to disqualify Mokhtar Sidin JCA as a member of the panel on the ground that he (Anwar), while representing the Prime Minister Dr. Mahathir, had expressed negative comments to the Conference of Rulers concerning Justice Mokhtar Sidin. It was thus a recusal application, and the only matter for decision for the Court of Appeal was whether to grant or dismiss Anwar’s application. Nonetheless, the judgement of the Court of Appeal went outside the issue for determination, and clearly as “obiter dicta ” stated: “In the matter of an oral application by Dato’ Seri Anwar bin Ibrahim to disqualify a judge of the Court of Appeal. [2000] 2 MLJ 481 [CA] The intention of this article (Article 122 B(1))
is clear, i.e, the Yang di-
Pertuan Agong must act on the advice of the Prime Minister. However, the Yang di-Pertuan Agong is required to consult the Conference of Rulers before making the appointment. To consult means to refer a matter for advice, opinion or views. For a quick reference as to the meaning of this word, I refer to the Black’s Law Dictionary (7 th Ed), which is the latest edition, the word ‘consultation’ carried the meaning inter alia thus: The act of asking the advice or opinion of someone…consult vb. To ‘consult’ does not mean to ‘consent’. The Constitution uses the words ‘consent’ and ‘consult’ separately. For example the word ‘consent’ is used in Article 159(5) of the Constitution which states that the amendments to certain provisions of the Constitution cannot be passed by Parliament without the ‘consent’ of the Conference of Rulers.
The Black’s Law Dictionary
provides for the meaning of the word ‘consent’ thus, ‘Agreement, approval or permission as to some act or purpose especially given voluntarily by a competent person’. So in the matter of the appointment of judges, when the Yang di-Pertuan Agong consults the Conference of Rulers, he does not seek its ‘consent’. He
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merely consults. So when the Conference of Rulers gives its advice, opinion or views, the question is, is the Yang di-Pertuan Agong bound to accept. Clearly he is not. He may consider the advice or opinion given but he is not bound by it. But Article 40 (1A) of the Constitution provides specifically as to whose advice the yang di-Pertuan Agong must act upon.
Clause (1A) of
Article 40 reads: ‘In the exercise of his functions under this Constitution or federal law, where the Yang di-Pertuan Agong is to act in accordance with advice on advice or after considering advice the Yang di- Pertuan Agong shall accept and act in accordance with such advice.’
Clearly therefore the Yang di-Pertuan Agong must act upon the advice of the Prime Minister. The Advice envisaged by Article 40 (1A) is the direct advice given by the recommender and not advice obtained after consultation.
Lamin PCA Page 484) (my emphasis) In my opinion, the “obiter ” views expressed by Lamin PCA (made without the benefit of reasoned submissions) are not correct. The Court is giving a literal interpretation to the words employed in Article 122 B(1), thereby giving them a limited meaning, not befitting an important constitutional provision. They do not reflect the checks and balances structure, whether under the doctrine of separation of powers or otherwise, which underpins the Federal Constitution, and is an over- simplistic approach to a complex problem.
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After Lamin’s PCA dicta was issued, His Majesty Sultan Azlan Shah, wrote an article entitled “The Role of Constitutional Rulers and The Judiciary, Revisited” which was published in 2004 in a collection of speeches and essays of His Majesty under the title “Constitutional Monarchy, Rule of Law and Good Governance ”. His Majesty, as befitting the learning and wisdom of a Lord President, correctly interpreted the constitutional requirements of the “consent and consultation” privilege conferred on the Conference of Rulers. I would like to rely upon 3 passages from His Majesty’s speech:The Federal Constitution expressly provides that on certain matters, the Conference of Rulers is to play an important role in the constitutional process.
It must be remembered that the Merdeka
Constitution was formulated with the participation of the Malay Rulers, and as such a constitutional role was prescribed to them. Furthermore, when the Reid Commission made its Report, the Commission was of the view that the Rulers, collectively to be known as the Conference of Rulers, should serve as a check and balance in some of the constitutional processes under the Federal Constitution. For this purpose, in several important matters under the Constitution, it was provided that the Conference of Rulers was to participate in the process.” (Page 390) “(3)
Whatever strict legal distinction may exist between the terms
‘consult’ and ‘consent’ (or even ‘advise’), the role played by the Conference of Rulers cannot be diminished by drawing such slight distinction in terminology. To say that appointments can be made even if the ‘Conference of Rulers….withholds its views or delays the giving of its advice’ clearly goes against the grain and spirit of the Constitution. The entire process of consultation with the Conference of Rulers cannot simply be relegated to a mere formality. The key words here, as stated in Article 38 (2)(c), are ‘giving advice on any appointment’. This is a constitutional role that was contemplated by the drafters of
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the Constitution — a role of checks and balances that ensures the appointment of the best persons to important constitutional positions. It was also clearly intended to prevent any abuses of power by not giving the appointment authority the sole discretion in the appointment process of key positions under the Constitution.” [Page 395-396] “Therefore, in this regard, it is generally difficult to rationalize why a Prime Minister would not want to consider, or even abide by the views of nine Rulers and four Governors who constitute the Conference of Rulers. These are independent persons, with vast experiences, and with no vested interest in the nominated candidates. Their duty is to fulfil their constitutional role in ensuring that only the best and most suited candidates are selected for the posts.” [Page 397] I appreciate that it may be said that the views expressed by a judge and a member of the Conference of Rulers may not perceived as being independent. Nonetheless, these views reflect their opposing perspectives, and are valuable contributions to the intellectual debate. This constitutional issue is not free from doubt or ambiguity. On balance, I am of the opinion that in the case of any appointment of a judge to the Federal Court, Court of Appeal and the High Courts of Malaya and Sabah and Sarawak, on a true interpretation of Article 122 B(1), viewed in its constitutional context, the Yang di-Pertuan Agong, the Prime Minister and the Conference of Rulers must be ad idem on the choice of the candidate.
POSTCRIPT
After this article was sent for publication, Justice Hamid was appointed President of the Court of Appeal and Justice Alauddin the Chief Judge of Malaya. Even if the intention of the Founding Fathers was that the constitutional consultation process contemplated confidentiality until the successful candidate was publicly announced, recent experience suggests otherwise. Thus, it was an open secret among informed members of the Bar, and no doubt the entire higher Judiciary, that these 2 highly eminent and senior
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judges were not the candidates proposed by the Chief Justice. In the case of the Chief Judge of Malaya, according to well-informed sources, the Chief Justice’s recommendation was a newly appointed Judge of the Federal Court who was very recently publicly embarrassed by the disclosure that some 35 judgments were outstanding during his tenure on the High Court, including 5 criminal cases with death sentences. But for the Conference of Rulers exercising its constitutional functions properly, he would have been appointed the Chief Judge. Thus, Justice Hamid’s and Justice Alauddin’s appointments demonstrate the importance of true consultation. Prime Minister Abdullah Badawi must be congratulated in accepting the reservations of the Conference of Rulers on the candidate proposed by the Chief Justice, which decision has so rapidly been publicly vindicated. My article was written in cold legal terms, divorced from actual examples. If one were to consider the historical record since Merdeka, Prime Ministers Tunku Abdul Rahman, Tun Abdul Razak and Tun Hussein Onn, perhaps because they were lawyers, took consultation very seriously, and Chief Justices and Lord Presidents from 1957 to 1981 were taken into confidence when judicial appointments were made. Occasionally, the Bar Council was also sounded out. It is no coincidence that the reputation of the Malaysian Judiciary was at its highest in the 1970’s and 1980’s when judges were appointed after proper consultation in accordance with true constitutional principles. The early years of Dr Mahathir’s Prime Ministership followed this convention. However, the dismissal of Lord President Salleh Abas and 2 Federal Judges and the suspension of 6 Federal Court judges in 1988 severely eroded public confidence in the judiciary.
From 1988 to 2003 although constitutional form was observed, the true
“appointer” was Prime Minister Mahathir, occasionally acting on the recommendations of his Lord President/Chief Justice. It was well known in political circles that despite the objection of some members of the Conference of Rulers, the Prime Minister’s candidates were always selected. Again, it is no coincidence that the Malaysian Judiciary was at its nadir in the last 1990’s, characterized by Ayer Molek, poison pen letters, and numerous other notorious episodes. Hence, if the Malaysian judiciary is to recover its former glory, as a first step, the appointment and promotion process must be strengthened. Absent the establishment of an independent Judicial Commission operating under open and transparent guidelines which the Bar has for years been advocating, Article 122 B(1) of the Federal Constitution must be construed in the manner envisaged by the Founding Fathers, and especially, the Founder of
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Merdeka, Tunku Abdul Rahman. The fortuitous circumstance of the Conference of Rulers having as one of its Rulers, Sultan Azlan Shah, whose opinion on judicial character and ability is unsurpassed, must be taken advantage of, and His Majesty’s advice must be given due weight for the nation’s good.
Tommy Thomas 5th September 2007
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