PETALING JAYA: A former chief justice says any move by incumbent top judge Raus Sharif to remain in office after retirement will compromise the independence of the Malaysian judiciary.
Abdul Hamid Mohamad said a chief justice who wanted to be reappointed after reaching the age of 66 years and six months might go out of the way to please the Yang Di-Pertuan Agong and the prime minister.
“This trend may go on and the independence of the judiciary is compromised,” he said in a recent post in his blog.
Hamid, who served as chief justice for about a year until 2008, said retaining a chief justice beyond the compulsory retirement age would also create uncertainty among other judges regarding their career.
“They would not know who would be the chief justice and for how long and what are the chances of their own promotions,” he said.
Under Article 125 (1) of the Federal Constitution, judges must retire from office upon reaching 66 years of age and can only remain another six months provided an extension is approved by the king.
Hamid said any move to retain Raus under Article 122 (1A) would be unconstitutional.
That provision states the king could, on the advice of the chief justice, appoint an additional judge a person who had held high judicial office.
“So, it is an appointment, not an extension. In other words, the term of office of a chief justice cannot be extended pursuant to this clause,” he said.
Hamid said the appointment of an additional judge of the Federal Court was to do the work of a Federal Court judge, not to be the chief justice.
“So, this clause does not provide for the Yang Di-Pertuan Agong to appoint a chief justice,” he added.
He questioned what would be the function of the Judicial Appointments Commission and Rulers’ Conference if such a backdoor appointment was allowed.
Hamid said he did not think that anyone had ever thought that the words “additional judge of the Federal Court” in Article 122 (1A) included the chief justice when the clause was inserted in 1965.
“Therefore, I am of the view that the appointment of Raus, with greatest respect to him, for a further period of two years after he has attained the age of 66 years and six months, is unconstitutional. It should not have been done. It should never be repeated,” he said.
Hamid said it would be embarrassing for someone to challenge the appointment in court.
“It is embarrassing for the next senior judge, the President of the Court of Appeal, to preside over the court to hear the case as it could be said that he has a personal interest.
“Indeed, the same argument applies to Chief Judge (Malaya), Chief Judge (Sabah and Sarawak) and the Federal Court judges, at least the more senior ones,” he added.
He said unless it can be shown that Raus’ appointment or extension in question has been validly made pursuant to another provision of the Constitution, the honourable way to solve the problem was for him (Raus) to put aside his personal interest and rise to the occasion.
Hamid said Raus should declare: “I have reconsidered the constitutionality of the appointment and I am not comfortable to remain as Chief Justice and I am tendering my resignation”.
“If he does that, I am sure that he will be remembered for a long time for his bravery, unselfishness, dignity and integrity. He will also be at ease with himself as long as he lives,” he said.
Hamid said the government should then appoint a new chief justice as provided by the Constitution, saving the integrity of the judiciary and, hopefully, of the government as well.
The Malaysian Insight portal had quoted a Putrajaya source as saying the tenure of Raus and national police chief Khalid Abu Bakar was expected to be extended up to two years to ensure continuity as the ruling Barisan Nasional (BN) gets set to face the general election.
Last month, the Malaysian Bar joined the chorus of critics protesting the likelihood of the authorities extending the tenure of Raus, who is scheduled to retire on Aug 3.
Retired Federal Court judge Gopal Sri Ram also said any extension given to Raus would be unconstitutional and could be subject to legal challenge.
He said the only other route was to amend the constitution to extend the age of retirement for all judges but this was currently impossible as the BN government lacked a two-thirds majority in Parliament.
Criticism of any move to retain Raus as the top judge also came from former de facto law minister Zaid Ibrahim and former Bar Council president Param Cumaraswamy.