THE recent statement by the Malaysian Consultative Council of Buddhism, Christianity, Hinduism, Sikhism, and Taoism (MCCBCHST) urging amendments to Article 122B of the Federal Constitution reflects a regrettable misunderstanding of both the constitutional architecture and democratic legitimacy.

1. Article 122B reflects democratic accountability, not executive overreach

Article 122B vests the appointment of superior court judges in the Yang di-Pertuan Agong, acting on the advice of the Prime Minister after consultation with the Conference of Rulers. Far from being arbitrary or excessive, this is a deliberate constitutional design that balances executive accountability with royal oversight. The Prime Minister, as the elected head of government, is answerable to Parliament and ultimately to the people. The Conference of Rulers acts as an institutional safeguard, particularly on matters involving high constitutional significance. Any claim that this arrangement “grants excessive power” to the executive ignores the Constitution’s checks and balances and distorts the meaning of democratic responsibility.

2. Separation of powers does not mean isolation of powers

The MCCBCHST’s reference to the “separation of powers” is misapplied. In constitutional theory and practice, separation of powers refers to functional independence, not complete insulation. The executive’s role in judicial appointments, with consultative and ceremonial limits, does not undermine judicial independence. Rather, it reinforces the interlocking nature of governance while ensuring that unelected judges are not selected by unelected bodies.

3. Misuse of the Indira Gandhi judgment

The Council’s citation of Indira Gandhi v Director of the Perak Islamic Department is misplaced. That decision affirmed constitutional supremacy and judicial review — not the restructuring of constitutional procedures for appointments. There is nothing in that judgment that invalidates Article 122B, nor does it confer upon civil society the prerogative to unilaterally dictate constitutional amendment. Stretching that judgment to justify an overhaul of judicial appointments is disingenuous and legally untenable.

4. The Basic Structure Doctrine is not a blank cheque for structural activism

The invocation of the Basic Structure Doctrine by MCCBCHST reflects a growing trend of selective application. While the doctrine may safeguard essential constitutional principles, it cannot be used as a rhetorical weapon to override express constitutional provisions like Article 122B. If Article 122B was truly inconsistent with the basic structure, the framers would not have embedded it in the original text. The Constitution’s legitimacy stems from the collective will of the people, not from judicially or civil society-invented doctrines.

5. Manifestos are not constitutional law

The suggestion that the government is duty-bound to amend Article 122B based on a political manifesto ignores constitutional realities. A manifesto is a political document, not a source of legal obligation. Any amendment to Article 122B requires two-thirds parliamentary support and the consent of the Conference of Rulers. Reducing complex constitutional processes to manifesto promises is a dangerous trivialisation of constitutionalism.

6. Institutional humility is needed

The MCCBCHST should be reminded that it is a religious consultative body, not a constitutional authority. While it is fully entitled to participate in public discourse, it must do so with a sense of institutional modesty and legal precision. Vague appeals to “minority protection” and “judicial independence” do not justify distorting constitutional fundamentals.

*The author is an experienced legal practitioner who frequently engages in legal discourse.