This is the article that appeared in the Singapore Straits Times today 8 August 2007:

Malaysian Sultans reject KL’s choice of Chief Justice

Decision could lead to an impasse between rulers and government.

By Carolyn Heng
Malaysia Bureau Chief
IN KUALA LUMPUR

Malaysia’s rulers have refused to endorse the government’s candidate for a key judicial post, setting the stage for a possible impasse between the rulers and the administration.

The Conference of Rulers last month asked Prime Minister Abdullah Badawi to reconsider the candidate named for the post of Chief Justice of Malaya (CJM), the third highest-ranking official in the judiciary.

The Constitution requires the Prime Minister to “consult” the Conference of Rulers, comprising the nine hereditary rulers, and their highly unusual move to withhold approval has created a stir in the legal fraternity.

The position of CJM has been vacant for seven months since Tan Sri Norma Yaakob retired in January. There are currently eight judges in the Federal Court who qualify for the appointment.

“There are concerns as to why the candidate was picked over three other more senior judges,” said a source, alluding to a possible reason for the lack of royal approval.

When asked by reporters about the matter, Chief Justice Tun Abdul Fairuz Sheikh Abdul Halim declined comment, saying judicial appointments were a confidential matter classified under the Official Secrets Act (OSA).

Under the Malaysian Constitution, the rulers are to be consulted on certain key government appointments such as judges or members of the Election Commission.

In the case of judicial appointments, the Prime Minister makes the recommendations after discussion with the Chief Justice.

However, while they rarely reject recommendations, the Conference of Rulers has always been active in debating the appointments.

One of its most senior members, Sultan Azlan Shah of Perak was head of the Malaysian judiciary in the 1970s. PM Abdullah is believed to have met the Perak Sultan over the matter.

Legal opinion is divided on whether the rulers’ refusal to accept the candidate will stymie the appointment.

The Constitution is silent on this point, while in the case of Bills passed by Parliament, it states that they automatically become law after 60 days if the rulers withhold assent.

A similar case arose in 1999 when sacked deputy premier Anwar Ibrahim tried to disqualify judge Mokhtar Sidin from hearing his case.

He argued that the judge might be biased against him as he had represented the administration at a Conference of Rulers’ meeting which declined to accept Datuk Mokhtar’s appointment to the Court of Appeal.

Datuk Mokhtar was nevertheless subsequently appointed to the bench.

The court ruled then that “to consult does not mean to consent”, and the rulers’ views are not binding on the prime minister.

However, in his 2004 book “Constitutional Monarchy, Rule of Law and Good Governance”, Sultan Azlan Shah noted that this goes against the grain and spirit of the Constitution.

The consultation process is meant as a mechanism of checks and balances, he argued.

Yesterday, Chief Justice Ahmad Fairuz, who has been acting as CJM for almost seven months, would only reveal that the No 3 post would be filled before the end of the year.

But to add to the complexity, the post of the President of the Court of Appeal – the No 2 post – is currently also vacant fllowing the death of Tan Sri Malek Ahmad in June.

Tun Ahmad Fairuz himself is also due for retirement in October.