New Sunday Times
by Roger Tan
Our constitutional rulers are not mere rubber-stamps. They hold powers of check and balance. Advice given by the Conference of Rulers ‘is highly persuasive and so persuasive that it is incumbent upon the king to follow’ it.
"CONSULT" is currently the most talked-about word among legal circles.
It all started when the Singapore Straits Times reported on Aug 8 that Malaysia’s Conference of Rulers had refused to endorse the candidate submitted for the post of Chief Judge of Malaya, in place of Tan Sri Siti Norma Yaakob who retired on Jan 5.
The interest was heightened by Chief Justice Tun Ahmad Fairuz Sheikh Abdul Halim’s statement two days later after the swearing-in of eight judicial commissioners that he did not know if the Conference of Rulers had rejected the government’s choice of candidate because it was under the Official Secrets Act.
Fairuz added that the prime minister was the one who made the ultimate decision on the appointment of the Chief Judge of Malaya because the Yang di-Pertuan Agong acted on the prime minister’s advice. He went on to say that under the Federal Constitution, the prime minister would consult the chief justice and the king would, in turn, consult the Conference of Rulers on the selection.
However, he stressed that consultation did not mean one was bound by the views given.
Hence, reference must be made to Article 122B (1) of the Federal Constitution which 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 shall be appointed by the Yang di-Pertuan Agong, acting on the advice of the prime minister, after consulting the Conference of Rulers."
In fact, the word "consult" appears 27 times in different grammatical variations in the Constitution. Apart from being consulted in the appointment of His Majesty’s judges, the Conference of Rulers also has to be consulted over the following:
• before any change in policy affecting administrative action under Article 153 is made (in relation to the special position of the Malays and natives of any of the states of Sabah and Sarawak and the legitimate interests of other communities) (Article 38 (5)); and,
• the appointments of the Auditor- General (Article 105 (a)); the Election Commission (Article 114 (1)) and the Education Service Commission (Article 141A (2)).
In 2000, the Court of Appeal ruled that by virtue of Article 122B (1), the prime minister could insist on the appointment of a judge even if the Conference of Rulers did not agree or withheld its views or delayed the giving of its advice to the king.
This ruling came up during the hearing of an appeal from Datuk Seri Anwar Ibrahim, who claimed that when he was the deputy prime minister, he had represented the prime minister at the Conference of Rulers in which the appointment of High Court judge Mokhtar Sidin (as he then was) to the bench of the Court of Appeal was questioned; the Conference of Rulers could not agree with the prime minister’s advice with regard to the appointment. Therefore, Anwar had wanted to disqualify Mokhtar from the quorum of the Court of Appeal hearing his appeal on the grounds that there might be a likelihood of bias on the judge’s part.
Delivering the ruling of the court, then President of the Court of Appeal Tan Sri Lamin Yunus, who sat with Fairuz and Mohktar, said to "consult" did not mean to "consent". He added:
"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 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."
However, there are contrary views, citing various compelling reasons why the king ought to follow the advice of the Conference of Rulers.
They say, firstly, in practice, the advice given by the Conference of Rulers is highly persuasive and so persuasive that it is incumbent upon the king to follow considering that:
• the king is consulting his equals and the consulted are not those subordinate to him unlike in the case of the king appointing a judicial commissioner under Article 122AB. Further, if the king wants to go on leave for more than 15 days other than on a state visit to another country, he must seek the consent of the Conference of Rulers (Article 34 (5)). A fortiori, the king can also be removed by the Conference of Rulers if five or more of its members vote in favour of it. (Para 8, Part III, Schedule III.)
• the Conference of Rulers is an important constitutional body as it is provided in the Constitution that the consent of the Conference of Rulers is required under certain circumstances and before certain laws can be amended. (Articles 2; 33 (5); 34 (5); 38 (4), 159 (5), para 9 Schedule V, para 19 (5) Schedule VIII.)
• it is within the discretion of a ruler to appoint the chief minister of his state — see Article 71; Paragraph 2, Part I of Schedule VIII and more specifically, Article 36 of the Negri Sembilan Constitution and Article 6, Part II of the Pahang Constitution, albeit by convention the ruler will appoint the person of the party which has the majority of seats in the legislature.
Secondly, I am of the humble opinion that the ruling in the Anwar Ibrahim case is not binding on the king. This is not so much because Lamin’s views are merely obiter dicta (statements made by the way which are not legally binding), but rather it is not the opinion of the Federal Court which the king has referred to it pursuant to Article 130.
Further, in an article entitled "The Role of Constitutional Rulers and the Judiciary Revisited" in the book Constitutional Monarchy, Rule of Law and Good Governance, Perak ruler Sultan Azlan Shah responded to Lamin’s obiter dicta as follows:
"Whatever strict legal ‘distinction may exist between ‘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.
"Lamin’s statement that in the appointment of judges only the views of the prime minister are important, even if no views are expressed by the Conference (either because it had withheld its views for further consideration, or delayed the giving of its advice), seems to suggest that the prime minister may also dispense with the requirement under the Constitution to seek the views of the chief justice.
"Therefore, in this regard, it is generally difficult to rationalise 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."
Sultan Azlan Shah added that actually, in practice, the prime minister submits the names of the candidates to the Conference of Rulers. The Conference then submits its views to the prime minister before he tenders his advice to the king. Therefore, Sultan Azlan Shah said the views of the Conference of Rulers are, strictly speaking, given to the prime minister who will consider them before making the final recommendation to the king. Only when such a procedure is followed, Sultan Azlan Shah said, can the Conference of Rulers play an effective role in the "advising" process.
Thirdly, if one compares this with the appointment of a judicial commissioner where Article 122AB requires the king to consult the chief justice, one is tempted to ask how often then does the king reject the chief justice’s nominees for the post of a judicial commissioner? Is it a matter of course that the list is accepted by the king? Or is the list, in fact, only submitted to the prime minister? It follows that if the chief justice’s choice is often accepted by the king, then as often it should be that the king should accept the advice of the Conference of Rulers, and that there must exist an even stronger reason if the king wishes to ignore his brother rulers’ choice.
In fact, not all legal obligations are binding from the moral point of view. For example, the law cannot be as asinine to expect the king to appoint, for example, a candidate who is notorious for his bad record of performance or faces serious allegations of misconduct or dishonesty. The consulting and the consulted must act reasonably.
This goes to show that our constitutional rulers are not mere rubber-stamps. They, like the other organs of government, hold checking and balancing powers. It is important that holders of such powers should always attempt to accommodate one another’s views and come to a compromise.
The king is obviously in a dilemma. On the one hand, he must respect the views of his brother rulers who have the power to remove him. On the other, he has to defer to the advice of a democratically elected government.
But, no one should be alarmed apropos of this imbroglio. In my opinion, it is good to test the Constitution from time to time. In this case, I am confident that eventually, our rulers and prime minister will mutually agree in the best interest of our nation and people within the spirit and proper understanding of the Constitution so that the public will be assured that the Malaysian constitutional system with its entrenched checks and balances will continue to serve the nation well.
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