OCTOBER 28 — In the case before the Court of Appeal, reported as 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, during the course of the hearing of his appeal, the appellant requested for permission to address the court himself.
The appellant claimed that in his capacity as the deputy prime minister, he had represented the prime minister to 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 in question, as the Conference of Rulers were not in agreement with the prime minister’s advice with regard to the appointment
In light of that, the appellant made an oral application to disqualify Judge of Court of Appeal Mokhtar Sidin from the quorum hearing the appeal on the ground that there might be a likelihood of bias on the judge’s part.
The Court of Appeal, composed of its President, Justices Ahmad Fairuz and Mokhtar Sidin, dismissed the oral application.
Delivering the judgment of the Court, Court of Appeal President Lamin felt strongly that he should explain the relevant provision of the Federal Constitution relating to the appointment of judges of the High Court, of the Court of Appeal and of the Federal Court.
That provision is Article 122B(1) which reads as follows:
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.
Lamin PCA explained:
“The intention of this Article is clear — that is, 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 Black’s Law Dictionary … The word ‘consultation’ carries the meaning inter alia thus: The act of asking the advice or opinion of someone.”
Other meanings of ‘consult’ include ‘to seek information or advice from (someone, especially an expert or professional)’, ‘to have discussions with (someone), typically before undertaking a course of action’ (Oxford English Dictionary); ‘to have regard to, consider’ (Merriam-Webster Dictionary); and ‘to discuss something with someone before you make a decision’ (Cambridge Dictionary).
To consult should not be misconstrued as granting the consulted party the authority to either sanction or obstruct a decision to be made by the consulting party. It merely confers on the party the right to be apprised of the matter to be decided upon.
Under international law, sovereignty is paramount.
After Article 1 of the United Nations (UN) Charter sets out the purposes of the UN, Article 2 states explicitly that the UN and its Members must act in accordance with the seven principles of the Charter.
The first and foremost principle is the principle of sovereign equality of all UN Members.
The fourth principle refrains all UN Members from acts inconsistent with the purposes of the UN set out in Article 1.
So, Investment, Trade and Industry Minister Datuk Seri Tengku Zafrul Abdul Aziz rightly said that the newly signed reciprocal trade agreement “does not infringe on Malaysia’s sovereignty to enter into digital trade pacts with countries that are not aligned with the US”.
Tengku Zafrul was commenting on Article 3.3 of the agreement, which states that Malaysia shall consult with the US before entering into a new digital trade agreement with another country that jeopardises essential American interests.
“We have discussed this. So, it is not mandatory. It is just consultation,” he told reporters after attending the Asean-US Summit at the Kuala Lumpur Convention Centre on Sunday (October 26).
To consult is to refer a matter for advice, opinion or views. Sovereignty of a state is not undermined.
* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.
