The confirmation yesterday by the Prime Minister’s Office (PMO) that the tenure of YAA Tan Sri Dato’ Seri Md Raus bin Sharif as Chief Justice of the Federal Court and YAA Tan Sri Dato’ Seri Zulkefli bin Ahmad Makinudin as President of the Court of Appeal have been extended a further 3 and 2 years respectively is a shocking and unprecedented development in the history of the judiciary which must be addressed at once.
I am of the view that the said statement of the PMO erroneously refers to the said extensions as “appointments” which, with the greatest of respect, is plainly wrong as it is obvious that same are, in reality, extensions which are not provided for in the Federal Constitution.
I had just yesterday submitted a written question in Parliament in the upcoming Parliamentary session commencing on 24.8.2017 on whether Raus’ rumoured extension would materialise and whether same was constitutional before learning of the said extensions above which are deeply regretted as I am of the firm view that the said extensions are indeed unconstitutional.
As stated above, it must be borne in mind that there seems to be no provision in the Federal Constitution which allows for the extension of the tenure of the Chief Justice of the Federal Court and the President of the Court of Appeal.
Article 122B(1) of the Federal Constitution which was adverted to in the said PMO’s statement does not deal with such extensions but rather the appointments of, inter alia, the Chief Justice of the Federal Court and the President of the Court of Appeal. The said Article states,
“122B. Appointment of judges of Federal Court, Court of Appeal and High Courts.
(1)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) 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.”
It is obvious the above Article is of no relevance to the said extensions as both Raus and Zulkefli cannot be appointed to the positions they are in as they have already been previously appointed to those positions.
Furthermore, Article 122(1)(1A) (which was also referred to in the said PMO’s statement) is absolutely irrelevant to the said extensions as same only concerns the appointment of an additional judge to the Federal Court. The said Article states,
“(1a) 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 sixty-six years.”
According to the said statement of the PMO, former Chief Justice YAA Tun Dato’ Seri Arifin bin Zakaria had recommended the said extensions.
Again, there is nothing in the Federal Constitution which provides for a current Chief Justice to advice on the appointment of a future Chief Justice. The appointment of a Chief Justice is expressly made only on the advice of the Prime Minister after consulting the Conference of Rulers pursuant to Article 122B(1).
If at all, YAA Tun Dato’ Seri Arifin bin Zakaria was only empowered to advice on the appointment of an additional judge of the Federal Court pursuant to Article 122(1A) and President of the Court of Appeal pursuant to Article 122B(1)(2) and certainly not the Chief Justice of the Federal Court!
It is obvious that the said Article 122(1A) contemplates the appointment of an additional judge of the Federal Court which can only mean a judge who is not, prior to the said appointment, already a judge of the Federal Court since a sitting Federal Court judge cannot be appointed an additional judge of the Federal Court as he already is a Federal Court judge.
As such, I am of the view that YAA Tun Dato’ Seri Arifin bin Zakaria was not in a position to recommend that Raus and Zulkefli be appointed additional judges of the Federal Court as stated in the said PMO’s statement as they were already Federal Court judges at the time such recommendation was made.
A valid example of an appointment of an additional judge of the Federal Court would be the appointment of former Federal Court judge YAA Dato’ Jeffrey Tan Kok Hwa who was appointed as an additional judge of the Federal Court after he retired as a Federal Court judge. As such, the said YAA Jeffrey Tan Kok Hwa’s appointment under the said Article 122(A) was perfectly valid as he was not a sitting Federal Court judge when he was appointed as an additional judge of the Federal Court as he was already retired then.
In the circumstances, I am of the respectful view that the said extensions of Raus and Zulkefli are legally untenable and cannot be said to be free from controversy and challenge.
Also from a non-legal point of view, the said extensions cannot be said to inspire confidence as it gives the impression that there are no other judges capable of filling the positions of Chief Justice of the Federal Court and President of the Court of Appeal at this point of time. Apart from being unprecedented, the said extensions are certainly unnecessary and a step in the wrong direction in the development of the judiciary.
In the circumstances, I strongly urge Raus and Zulkefli to decline the said extensions as there is a very strong likelihood that same will be challenged in court which will, undoubtedly, be very embarrassing to the judiciary as never have the top two posts of the same ever been challenged.
Any doubt as to the validity of the top two posts of the judiciary will severely damage its image and erode public confidence of same which must be avoided at all costs.