PETALING JAYA: Former chief justice Arifin Zakaria’s advice to the King to nominate two additional judges is unconstitutional as he was no longer in office to complete the appointment process, a former president of the Malaysian Bar said.
“A sitting chief justice must make the proposal for the appointee to take the judicial oath before him,” Ragunath Kesavan said.
He said Arifin made the proposal on March 30, a day before his retirement but approval was given later.
“Article 121(1A) does not envisage a chief justice to propose serving judges to be appointed additional judges at a time after he has retired,” he said.
Article 121 (1A) of the Federal Constitution states the king can appoint for a specific term or purpose any person who had held high judicial office in Malaysia.
Ragunath said this in response to Friday’s media statement from the Prime Minister’s Office (PMO) that Arifin had made the proposal to appoint chief justice Raus Sharif and Court of Appeal president Zulkefli Ahmad Makinudin as additional judges.
Following the approval, the PMO statement said the King on the advice of the prime minister and after consulting the Conference of Rulers which met in May, had appointed Raus and Zulkefli to remain in their present posts.
Raus’ tenure is for three years from Aug 4 while Zulkefli will remain in his current administrative post for two years from Sept 28.
Ragunath said when the appointment was made, the chief justice was Raus who assumed the position on April 1.
Moreover, he said, Arifin could not propose Raus and Zulkefli as they were still serving judges.
Ragunath said since the appointment of Raus and Zulkefli as additional judges was invalid, the extension of tenure in their current positions was also unconstitutional.
He said the appointment of Jeffrey Tan Kok Hwa as additional judge on the suggestion of Arifin was legal as he (Tan) returned to the bench after a lapse of seven months.
Tan retired in November 2015 and was made additional judge of the Federal Court on a two year contract from July 1 last year.
“Tan took his oath of office before Arifin and currently is the most junior judge in the Federal Court judicial ladder,” he said.
Most lawyers and the Malaysian Bar have taken the stand that it is constitutionally wrong to extend the terms of the chief justice and the Court of Appeal president after they have reached the mandatory retirement age.
Raus was scheduled to retire on Aug 3 while Zulkelfi on Sept 27.
Lawyer Muhammad Rafique Rashid Ali said additional judges in the Federal Court could not hold any of the four administrative posts in the judiciary.
However, senior lawyers Muhammad Shafee Abdullah and Jagjit Singh had said Raus and Zulkefli’s appointments were valid as the extension of their current tenures would take effect after their retirement.
Lawyer and Bukit Gelugor MP Ramkarpal Singh had earlier said Arifin’s recommendation was unconstitutional as the two men were still on the bench.
Former chief justice Abdul Hamid Mohamad had publicly advised that a further extension to Raus’ tenure would be unconstitutional and would cause uncertainty in the judiciary.
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.