Does the constitutional provision to 'consult the rulers' amount to seeking their consent? This is the question to answer in the wake of the reported rejection of the government's nominee for the Chief Judge of Malaya (CJM) by the Conference of Rulers.

While most legal experts have opined that the rulers have no right to veto the choice of candidate under the Federal Constitution, retired appellate judge KC Vohrah argued that one has to look into the real intention of the constitution.

"A lot of people don't realise that the constitution shouldn't be interpreted pedantically and narrowly, because a number of cases by eminent judges like (former Lord Presidents) Sultan Azlan Shah (photo) and Tun Suffian (Hashim) state that the constitution is a living document," he told malaysiakini in an interview.

"One has to look at extraneous material to get at its meaning, not just look at the bare words (of the constitutional provisions)."

The former judge, who retired in August 2002, made his remarks in a personal capacity, when asked to comment on the public debate on the issue. He is currently serving his third term at the Human Rights Commission of Malaysia.

Elaborating, he cited the government White Paper by then Malayan representatives to point out that the role of the Conference of Rulers is not merely perfunctory, but as guardian of the constitution as intended by the framers of the document.

Quoting the paper, he explained that historically, the Conference of Rulers was only intended to meet to elect one of their number as head of state or his deputy.

However, the Malayan representatives of the time had asserted that the rulers must have a constitutional right to be consulted on matters affecting their personal position, sovereignty or the good government of their states.

As a result, additional functions were included that required the Conference of Rulers to be consulted on certain key appointments, including those to the judiciary, as "the holders of these appointments will exercise powers in respect of both state and federal affairs".

No binding decision

Vohrah too acknowledged that the Federal Constitution gives the prime minister the final say when there is disagreement over the choice of candidate, but suggested that the interpretation of the provision is still debatable.

This is because there has been no binding decision on the matter so far, although the Court of Appeal had referred to the issue in a 1999 case, he said.

In it, sacked deputy premier Anwar Ibrahim objected to Justice Mokhtar Sidin hearing his appeal on grounds of possible bias.

Anwar said he had been the government representative to the Conference of Rulers at a meeting that was to decide Mokhtar's elevation to the Court of Appeal. The rulers declined to accept the appointment, but it went through nonetheless.

While the Court of Appeal held that "to consult does not mean to consent", Vohrah said this was merely deemed an obiter dictum.

(Obiter dictum refers to statement 'said by the way' by judges, not as a subject in the judicial decision and is therefore not binding).

"I don't think that (remark) is binding, it's not relevant (to the case), I would say it is just an obiter," said Vohrah.

'Seek consensus'

He reiterated that the prime minister is obliged to consider the reasons why the rulers rejected the choice of candidate to fill the No. 3 post in the judiciary, and should seek to reach consensus with the rulers eventually.

Vohrah described the rulers' views as "weighty opinion and not given on a whim and fancy".

"The Conference of Rulers is not a rubber-stamp, it must have deliberation, it is an august body and a check and balance (mechanism) that has been put up by the constitution," he pointed out.

He also expressed hope that the vacant post would be filled soon.

The position has been vacant for more than seven months since Siti Norma Yaakob - the first woman to hold the post - retired early this year. Since then, Chief Justice Ahmad Fairuz Sheikh Abdul Halim has assumed the role of the CJM.

Singapore's Straits Times quoted sources in a report last week as saying that the Conference of Rulers had asked Prime Minister Abdullah Ahmad Badawi to reconsider the government's candidate, selected in discussion with the chief justice.

The newspaper speculated one reason behind the rare refusal was that the candidate had been picked over more senior judges. The nominee was not identified.

Commenting on the report, the chief justice said last Friday that the opinion of the King and the Conference of Rulers is not binding on the prime minister. He was, however, unable to confirm whether the government's candidate has indeed been rejected.