PETALING JAYA: A veteran MP today called on the prime minister, the attorney-general and the chief justice to enlighten the legal fraternity and the public on whether a new top judge will be appointed after Aug 3.
Lim Kit Siang, a former parliamentary opposition leader, said the trio could not continue to prolong their “collective silence” on this substantive and sensitive constitutional matter.
“One of them must speak up to quell the swirling questions of concern in the minds of judges, lawyers, legislators and informed Malaysians about the independence and integrity of the judiciary after Aug 3,” he said in a blog post today.
Lim said Chief Justice Raus Sharif should be reminded that when he took his oath as chief justice on April 3, he pledged that he would carry out the duties of the office to the best of his abilities as required by the Federal Constitution.
Raus had said he would ensure judicial independence and integrity among his judges during his term in office.
“I will bear true faith and allegiance to Malaysia, and will preserve, protect and defend its constitution,” he had said in his maiden speech as the nation’s top judge.
FMT has attempted to get in touch with Raus and AG Mohamed Apandi Ali but they have yet to respond.
Lim’s statement comes soon after a recent comment by former chief justice Abdul Hamid Mohamad that any move by Raus to remain in office after retirement would compromise the independence of the Malaysian judiciary.
Lim, the MP for Gelang Patah, said the question swirling in the minds of those in the legal circle and informed Malaysians was whether the country would have an unconstitutional chief justice after Aug 3.
“Will a new constitutional crisis blow up in the face of Parliament during its three-week sitting from July 24 with the appointment of an illegal and unconstitutional chief justice?” he asked.
He also asked whether the country would be celebrating its 60th National Day with a most serious assault on the sanctity and integrity of the fundamental provisions in the 1957 Merdeka Constitution on the doctrine of separation of powers and the independence of the judiciary.
Raus is scheduled to retire on Aug 3 after getting a six-month extension to remain on the bench.
Hamid, who served as chief justice for about a year until 2008, said retaining a chief justice beyond the compulsory retirement age would create uncertainty among other judges regarding their career.
Under Article 125 (1) of the Federal Constitution, judges must retire from office upon reaching 66 years of age and can only remain for 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 as that provision stated the king could, on the advice of the chief justice, appoint as 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 had 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.
“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.”
Hamid said it would be embarrassing for someone to challenge the appointment in court and for the next senior judge to hear the case as it could be said that he had a personal interest.
He said unless it could be shown that Raus’ appointment or extension in question had been validly made pursuant to another provision of the constitution, the honourable way to solve the problem was for Raus to put aside his personal interests 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,” Hamid said.
The Malaysian Insight 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.
Retired Federal Court judge Gopal Sri Ram said there were capable judges to take over the position of Raus as top judicial officer.
He warned that if the government defied the constitutional and legal restraints and proceeded to extend the tenure of the chief justice, it would “sow the wind but reap the whirlwind”.
Malaysian Bar president George Varughese had also expressed concern that the extension of the tenure of the country’s top judge was not only unconstitutional but unfairly embroiled Raus in a controversy.