The role of the Conference of Rulers in the appointment of the Chief Justice ― Gregory Das

APRIL 23 ― It is reported that the issue of the appointment of the new Chief Justice is presently before the Conference of Rulers. The office of Chief Justice has been vacant since April 12, when the last holder of the position Richard Malanjum retired. The prime minister is reported to be “puzzled” by the delay in the appointment of the government’s nominee for the office and by the “expanded royal assent” required for the appointment [2]

Therefore, it would be useful to note the constitutional functions of the Conference of Rulers, its role in the appointment of judges and the eventualities that may arise if there is a delay or a disagreement with the candidate proposed by the government for judicial office.

The Conference of Rulers is comprised of the Sultans and governors of the thirteen states. It ordinarily meets at least three times a year or when so required by the King.

Article 38 of the Federal Constitution defines the role of the Conference of Rulers. The institution performs the following functions, amongst others [3]:

(1)          the election of the King;

(2)          the dismissal of the King;

(3)          veto power on federal legislation on matters affecting, amongst others, the privileges, position, honours or dignities of the Malay Rulers;

(4)          consultation on appointments to certain key positions in Government such as, amongst others, judges of the superior courts, the Auditor-General and chairpersons and members of the Public Services Commission;

(5)          involvement in matters relating to the religion of Islam;

(6)          consultation on matters relating to the privileges of the Malays and the natives of Sabah and Sarawak and the legitimate interests of other communities;

(7)          the issuance of a pardon in respect of the King and the Sultans;

(8)          nomination of two judges to sit on the Special Court (which hears legal proceedings involving the King or the Sultans); and

(9)          the power of deliberation on matters of national policy.

A principal function of the Conference of Rulers is the consultation it provides to the King on the appointment of a judge of the High Court, the Court of Appeal and the Federal Court and, further, the appointment of the four office bearers of the judiciary (who are the Chief Justice, President of the Court of Appeal and the Chief Judges of the High Court of Malaya and the High Court of Sabah and Sarawak).

The provision of the Federal Constitution that governs the appointment process for these judicial offices is Article 122B(1), 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 art 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.”

Under this provision, the prime minister is required to propose candidates for the judicial offices to the King and the King, after consultation with the Conference of Rulers, appoints the candidate to the office.

However, what happens if there is a disagreement or a delay in the process before the Conference of Rulers? Can the prime minister insist on the appointment of its nominee for the office? Can the King ignore the advice rendered by the Conference of Rulers on the proposed candidate?

The Court of Appeal addressed these issues in a case in 2000 [4] and ruled that the prime minister can insist on its candidate and the King was under no obligation to heed the advice of the Conference of Rulers on the candidate proposed. The Court of Appeal stated as follows:

“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 art 40(1A) of the Constitution provides specifically as to whose advice the Yang di-Pertuan Agong must act upon ”

Clearly therefore the Yang di-Pertuan Agong must act upon the advice of the prime minister. The advice envisaged by art 40(lA) is the direct advice given by the recommender and not advice obtained after consultation.

So in the context of art 122B(1) of the Constitution, where the Prime Minister has advised that a person be appointed a judge and if the Conference of Rulers does not agree or withholds its views or delays the giving of its advice with or without reasons, legally the Prime Minister can insist that the appointment be proceeded with .” (emphasis added)

The Court of Appeal’s ruling is consonant with the King’s role as a constitutional monarch, who acts on the advice of the Cabinet and the prime minister. This is stipulated in Article 40(1) of the Federal Constitution, which states that the King “shall act in accordance with the advice of the Cabinet or of a Minister acting under the general authority of the Cabinet

Accordingly, it is constitutionally required that the advice of the Prime Minister be acted upon in respect of appointments to the judiciary. This is despite the King being the appointing authority for a judge of the superior courts and the Conference of Rulers having a consultative role in the process.  

In these circumstances, there is a legal basis for the prime minister to insist on the appointment of its candidate for Chief Justice. Such a step would also ensure that the vacancy in the country’s highest judicial office is not prolonged further. 

* Gregory Das is an Advocate and Solicitor of the High Court of Malaya.

** This is the personal opinion of the writer and does not necessarily the views of Malay Mail.

[2] Ibid

[3]See Document of Destiny by Professor Dr Shad Saleem Faruqi (2008) at pp. 420 – 427.

[4]In the matter of an oral application by Datuk Seri Anwar Ibrahim [2000] 2 MLJ 481.