The government should seek a judicial pronouncement as to the legality of these appointments now instead of waiting for a challenge.
The questions over the constitutionality of the appointments of Justices Tan Sri Mohd Raus Sharif and Tan Sri Zulkifli Ahmad Makinudin as additional Judges and as Chief Justice and President of the Court of Appeal should be resolved before they take office and not after.
We must remember that the Federal Constitution sets out expressly the composition of both the Federal Court and the Court of Appeal.
Likewise, there is express provision made in relation to the criteria for the appointment of the Chief Justice, the President of the Court of Appeal and additional judges of the Federal Court.
Public confidence in the judiciary demands that all judicial appointments are beyond question and never doubtful for any reason whatsoever.
This is because great power is bestowed upon judges following the said appointments which include the power to hear and determine appeals which carry heavy consequences.
Some of those decisions carry irreversible consequences such as the death penalty.
We cannot, in such circumstances, adopt a wait and see approach. It would be a tragedy of the highest order if a challenge is successful years ahead in which the orders now passed by these judges become questionable.
If the government is so certain that the appointments are in order, then a reference ought to be made to the Federal Court before the appointments take effect for a judicial pronouncement by the Apex Court to that effect.
This the government can do by advising His Majesty the Yang di-Pertuan Agong to seek an opinion from the Federal Court to that effect under Article 130 of the Federal Constitution.
Article 130 reads as follows:
“The Yang di-Pertuan Agong may refer to the Federal Court for its opinion any question as to the effect of any provision of this Constitution which has arisen or appears to him likely to arise, and the Federal Court shall pronounce in open Court it’s opinion on any question so referred to it.”
With respect, if the Prime Minister has already sought legal opinion in the matter, then that opinion could be tested as well so as to ensure that we make no mistake in the matter. An opinion, however much one agrees with it remains just that. One cannot equate it with a pronouncement by the Apex Court which is what is now needed to finally determine the matter.