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The Board is to be composed of: "(a) a Chairman, who shall be a legally qualified person with at least fifteen years' experience in the legal field; (b) a Deputy Chairman; and (c) not less than three and not more than six other members." Furthermore, these members are "to be appointed by the YDPA."
Furthermore, although members of the Board are to remain in office for a period not exceeding three years, the YDPA has been empowered by section 8(4) of the POTA to revoke at his whim the appointment of any member of the Board at any time.
This is not to say that that the YDPA is precluded from considering the matter in consultation with the other Malay Rulers, should His Majesty consider this to be necessary.
That would ultimately relate to the powers of the YDPA as to the appointment of the Attorney-General.
Article 145(1) specifically deals with the appointment of the Attorney-General and it explicitly requires the YDPA to appoint the Attorney-General on the advice of the Prime Minister.
Article 40 does however, generally provide for where the YDPA is to act on advice.
Whichever interpretation is adopted, in my respectful view, the YDPA is ultimately obliged to act on the advice given save where the Prime Minister is not empowered to give such advice.
Whatever be the reason, with all due respect, it is not something for the YDPA or the Conference of Rulers to deliberate on.
Article 145(1) of the Federal Constitution states that 'the YDPA shall, on the advice of the Prime Minister, appoint a person who is qualified to be a judge of the Federal Court to be the Attorney General for the Federation'.
Nonetheless, because we are a constitutional monarch, Article 40(1A) of the Federal Constitution states that the YDPA in such circumstances must accept and act in accordance with the advice of the Prime Minister.
The YDPA may only exercise his discretion in very limited areas prescribed under Article 40(2): the appointment of Prime Minister, withholding of consent to a request for the dissolution of Parliament, etc.
Hence, as long as the Prime Minister advices to appoint as AG a candidate whom the Prime Minister himself believes is qualified to be a judge of the Federal Court, the YDPA is bound to act on such advice.
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- Ydígoras Fuentes, Miguel
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- Ydrochorion, Greece