A NEW controversy may be looming over the appointment of the chief justice (CJ) to succeed the outgoing CJ Tan Sri Richard Malanjum – who retired on April 12.
The prime minister says that the government has sent to the king its choice of the candidate but has yet to receive any confirmation of its candidate from his royal highness.
The PM clarified: "I always imagine that the king is the person who must approve all senior appointments, but somehow or rather, there is reference to the Conference of Rulers. Now, it is not just the king, but it also has to go to the rulers. I don’t know what it means. The decision made (by Putrajaya) cannot be altered, unless there is a valid reason.”
The Federal Constitution makes it abundantly clear that the PM (meaning the government) advises the king who to appoint as CJ. The king must act on that advice. He has no choice in the matter. This is also made clear by a 2000 Court of Appeal decision when adjudicating on the relevant article 122B(1) of the Constitution.
There is provision for the king to consult the Conference of Rulers. But this, ruled the court, does not amount to seeking their consent. The Conference of Rulers cannot deny the government’s candidate. In the words of the Court of Appeal:
“So in the context of article 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.”
It is timely for all to note that the king, in the context of our Federal Constitution, is merely a symbol of acts done as a constitutional monarch at the behest of the government. The government represents the peoples’ will and its actions cannot be scuttled by anyone else. Nothing less than the democratic functioning of the country and the fundamental precepts of the Constitution are at stake.
That is why all laws are made by the peoples’ representatives by Parliament – though the preamble to every such law still maintains the fiction that the maker is the Yang di-Pertuan Agong and the two Houses of Parliament merely gave their advice and consent.
It is through ministers, deputy ministers, political secretaries and civil servants acting under their direction – that the government runs the country and exercises its executive powers; sometimes in the more important matters in the king’s name, but most often under their own official designation. The king merely personifies the executive government of the country – symbolically and fictionally.
It is well to reiterate that our Constitution did away with the concept of personal rule by a feudal landowning monarch; and replaced it with that of a monarch whose powers are delimited by the Constitution. In short, not an absolute but a constitutional monarchy.
Gurdial is a former law professor at Universiti Malaya. Comments: letters@thesundaily.com
