The Yang di-Pertuan Agong's appointment of judges is based on the Prime Minister's advice, without obligation to accept prior recommendations.

(delivering ruling of the court in open court):

The appointment of judges to the High Court, Court of Appeal and the Federal Court

Before we make known of our decision regarding the application made to us by the appellant yesterday the effect of which whether this quorum should continue to sit with or without Mokhtar Sidin JCA, we feel we should explain the relevant provision of the Federal Constitution (the Constitution) relating to the appointment of judges of the High Court, of the Court of Appeal and of the Federal Court. That provision is art 122B(1) and it 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.

The intention of this article is clear ie 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 carries the meaning inter alia thus:

The act of asking the advice or opinion of someone ... consult 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 art 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 art 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 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. Likewise in the case of a request from the Conference of Rulers for revocation of an appointment or an advice from it to revoke an appointment already made, the Prime Minister need not respond.

What we want to impress here in the light of the information given to us by the appellant yesterday ie something purportedly to have been expressed by the Conference of Rulers in the nature of an advice cannot be held against Mokhtar Sidin JCA for the Yang di-Pertuan Agong is not bound to accept that advice. Further the content of the advice has nothing to do