PETALING JAYA: Senior lawyer Jagjit Singh has joined the ranks of fraternity colleague Muhammad Shafee Abdullah in stating that the appointments of Chief Justice Raus Sharif and Court of Appeal president Zulkefli Ahmad Makinudin as additional judges are valid.
He said the appointments, made in tandem with the extension of their current tenures, would take effect after their retirement and as such were constitutional.
“It does not matter if one is appointed a day after retirement or six months later,” he said, responding to criticism that the advice for both to be made additional judges was given while they were still on the bench.
Jagjit said former chief justice Arifin Zakaria, who had recommended the move, was required to give advice to the King because he was due for retirement at the end of March.
“Arifin advised the Yang di-Pertuan Agong on appointing additional judges but Raus and Zulkefli will assume the position only a day after their retirement,” he told FMT.
He said it did not matter whether the advice and the announcement were made when Raus and Zulkefli were still holding their administrative posts.
He said this in commenting on an announcement from the prime minister’s office on Friday that Raus would continue to hold his position for another three years from Aug 4 while Zulkefli would also have his appointment extended for another two years from Sept 28.
Raus is scheduled to retire on Aug 3 and Zulkefli on Sept 27 after attaining the age of 66 years and six months, the maximum retirement age for judges.
The statement added that under Article 122B(1) of the Federal Constitution, the appointments for these posts were made by the Yang di-Pertuan Agong, on the advice of the prime minister and after consultation with the Conference of Rulers.
The statement also said the appointments of Raus and Zulkefli as additional judges was based on the suggestion and advice of Arifin to the King on March 30 before he retired.
“The proposal and advice was accepted by the Yang di-Pertuan Agong in accordance with Article 122(1A) of the Federal Constitution,” it said.
The statement said the above decisions and procedure were consonant with the provisions of the constitution now.
Article 122 (1A) of the Federal Constitution states that the Yang di-Pertuan Agong, on the advice of the chief justice, may appoint any person who “has held high judicial office in Malaysia” for a specific period or purpose.
Lawyer and Bukit Gelugor MP Ramkarpal Singh yesterday said Arifin’s recommendation was unconstitutional as the two men were still on the bench.
Ramkarpal said the appointment of former Federal Court judge Jeffrey Tan Kok Hwa as additional judge in July last year was valid as he had returned to the bench seven months after retirement.
Jagjit said the King’s decision to retain them in their administrative posts could not be questioned once the appointments as additional judges were valid.
“You can take it to court but whether you succeed or not is a moot point,” he added.
Jagjit said he believed the government would also have obtained legal advice from the Attorney-General and senior lawyers from within or outside Malaysia.
Shafee had said that no provisions in the Federal Constitution seemed to prohibit additional judges to continue in their current positions.
Former chief justice Abdul Hamid Mohamad had publicly advised that a further extension to Raus’ tenure would be unconstitutional.
Similar opinions were expressed by former Federal Court judge Gopal Sri Ram, former de facto law minister Zaid Ibrahim and current Malaysian Bar president George Varughese.