On July 7, the government extended the services of Chief Justice Md Raus Sharif and Court of Appeal president Zulkefli Ahmad Makinudin, who will serve an extra three and two years respectively.
Both men were appointed as additional judges to keep them in judicial office beyond the age limit of 66 years and six months, pursuant to Article 122(1A) of the Federal Constitution.
Universiti Teknologi Mara emeritus professor Shad Saleem Faruqi pointed to the provision that stated the Yang di-Pertuan Agong "must act on the advice of the chief justice."
"Now, must the chief justice who renders advice, be the existing chief justice? Or can it be the former chief justice advising a prospective appointment, while he was still holding his post?" Shad said during a forum hosted by The Malaysian Bar in Kuala Lumpur last night.
Present were former Federal Court judge Gopal Sri Ram and prominent lawyer Malik Imtiaz Sarwar.
"Unless specified otherwise, it could mean a return to absolute monarchy, whereby the Yang di-Pertuan Agong has the final say," said Shad, who holds the Tunku Abdul Rahman Chair at Universiti Malaya.
Shad further questioned whether the Yang di-Pertuan Agong's power under Article 122(1A) to appoint additional judges was a purely discretionary power or was this a "function under this Constitution or federal law" for which the prime minister's advice under Article 40(1) and 40(1A) was binding?
"Additional judges can be appointed for such purposes or for such periods as the King may specify. However, can the purpose be to occupy the position of chief justice and president of Court of Appeal?
Article 122(1A) reads: "Notwithstanding anything in this constitution contained, the Yang di-Pertuan Agong acting on the advice of the Chief Justice of the Federal Court may appoint for such purposes or for such period of time as he may specify any person who has held high judicial office in Malaysia to be an additional judge of the Federal Court, provided that no such additional judge shall be ineligible to hold office by reason of having attained the age of 66 years".
Shad also called for reforms towards judicial independence and institutional separation
"The superior civil courts are distinct from and independent of the other branches of state," he said.
"But regrettably, the inferior courts are part of a fused judicial and legal service on which JPA (Public Service Department) head and the AG (Attorney General) have significant influence under Article 138."
Under article Article138 of the Constitution, the AG chairs the Judicial and Legal Services Commission (JLSC). Prior to 1960, the Chief Justice chaired the JLSC.
Former chief justice Abdul Hamid Mohamad had said that Article 122(1A) could not be used to extend the tenure of the chief justice.
Hamid had also noted that the appointment of the additional judge must be on the recommendation of the chief justice, which meant that the chief justice will have to recommend himself if he is to be made an additional judge.
As such, he said an additional judge cannot be the chief justice.
The government said the extensions were proposed by former chief justice Arifin Zakaria before he retired on March 30.
Bar president George Varughese had called the appointments of Raus and Zulkefli as unprecedented, “troubling” and “blatantly unconstitutional”, pointing to five violations of the constitution in the extension of the two judges.
The Malaysian Bar will hold an extraordinary general meeting (EGM) on August 3 at the Kuala Lumpur and Selangor Chinese Assembly Hall to get a mandate from its members before deciding on its next legal action. – July 22, 2017.
~ The Malaysian Insight