THE CONFERENCE OF RULERS AND

JUDICIAL APPOINTMENTS

The recent controversy over the proper constitutional role of the Conference
of Rulers in respect of judicial appointments has prompted me to research the subject. The
critical words in Article 122 B (1) of the Federal Constitution are after consulting the

Conference of Rulers. Article 122 B (1) in its 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 shall be appointed by the Yang
di-Pertuan Agong, acting on the advice of the Prim e M inister,
after consulting the Conference of R ulers.
(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] 2 MLJ 300, 301 held that in
interpreting the Constitution, regard can be made to history, including the recommendations
of the Reid Commission and other historical instruments preceding Merdeka, and the
subsequent establishment of Malaysia on 16th September 1963. The draft Constitution of
the Federation of Malaya prepared by the Reid Commission had no role for the Conference
of Rulers in appointing judges. Article 114(2) of their draft read: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

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 31st 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.

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.

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
Bagehots 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 Montesquieus 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].

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

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
Anwars 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 Blacks Law Dictionary (7th Ed), which is the latest edition, the
word consultation carried the meaning inter alia thus:
The act of asking the advice or opinion of someoneconsult 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 Blacks 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

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 diPertuan 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.
So in the contex t of Article 122B (1) of the Constitution, w here the
Prim e M inister has advised that a person be appointed a judge and
if the Conference of R ulers does not agree or w ithholds it view s or
delays the giving of its advice w ith or w ithout reasons, legally the
Prim e M inister can insist that the appointm ent be proceeded w ith.
Likew ise in the case of a request from the Conference of R ulers for
revocation of an appointm ent or an advice from it to revoke an
appointm ent already m ade, the Prim e M inister need not respond.
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.

After Lamins 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 Majestys 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

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

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 Justices 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 Hamids and Justice Alauddins 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 1970s and 1980s when judges were appointed after proper
consultation in accordance with true constitutional principles.
The early years of Dr Mahathirs 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 Ministers candidates were always
selected. Again, it is no coincidence that the Malaysian Judiciary was at its nadir in the last
1990s, 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 Majestys advice must be given
due weight for the nations good.

Tommy Thomas
5th September 2007

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