I would advise Nazri to be more careful in issuing public statements which will only embarrass him and the office he holds

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Press Statement
by Karpal Singh
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(Kuala Lumpur, Wednesday): Datuk Seri Nazri Aziz, Minister in the Prime Minister’s Department, appears to have taken on the role of a loose cannon when making public statements. Recently, he publicly said that there was an Act on the protection of whistle blowers when, in fact, such an Act does not exist. Now, he comes up with the statement that the Yang di-Pertuan Agong has to act on the advice of the Prime Minister on extending the tenure of the Chief Justice, Tun Ahmad Fairuz Sheikh Abdul Halim, who is due to retire at the end of this month. The extension of the Chief Justice’s tenure is the prerogative of the Yang di-Pertuan Agong. Article 125 (1) states,

‘Subject to be provisions of Clauses (2) to (5) [which are not relevant], a judge of the Federal Court shall hold office until he attains the age of sixty-six years or such later time, not being later than six months after he attains that age, as the Yang di-Pertuan Agong may approve.’

What is important is to consider the effect of the phrase as the Yang di-Pertuan Agong may approve. This phrase has to be considered in the context of the phrase and in any other case mentioned in this Constitution under Article 40 (2) of the Federal Constitution which states,

‘The Yang di-Pertuan Agong may act in his discretion in the performance of the following functions, that is to say:

(a) the appointment of a Prime Minister;
(b) the withholding of consent to a request for the dissolution of Parliament;
(c) the requisition of a meeting of the Conference of Rulers concerned solely with the privileges, position, honors and dignities of Their Royal Highness, and any action at such a meeting,

and in any other case mentioned in this Constitution.’

Clearly, it is the King’s discretion whether or not to extend the Chief Justice’s tenure after he attains the age of 66 on 1st November this year.

It is interesting to note that in the appointment of the Chief Justice, it is the King who appoints him acting on the advice of the Prime Minister after consulting the Conference of Rulers. Article 122B (1) which clearly reflects this states,

‘The Chief Justice of the Federal Court, the President of the Court of Appeal and the Chief Judges of the High Courts and (subject to Article 122c) and the other judges of the Federal Court, of the Court of Appeal and of the High Courts shall be appointed by the Yang di-Pertuan Agong, acting on the advice of the Prime Minister, after consulting the Conference of Rulers.’

The phrase acting on the advice of the Prime Minister after consulting the Conference of Rulers is, clearly, absent in Article 125 (1).

In my view, it is the King alone who has the prerogative to extend the tenure of the Chief Justice beyond the age of 66 and the Prime Minister has no say in the matter. Of course, the King may consult the Prime Minister for his views on the matter, but it is purely consultation and nothing else. The King is empowered by the Federal Constitution to be the repository of the prerogative to extend the tenure of the Chief Justice beyond the age of 66 for a period not exceeding 6 months.

In the meanwhile, I would advise Nazri to be more careful in issuing public statements which will only embarrass him and the office he holds.

(17/10/2007)