PETALING JAYA: Allowing incumbent chief justice Raus Sharif and Court of Appeal president Zulkefli Ahmad Makinudin to remain in their positions after the mandatory retirement age will give the impression that the judiciary is pro-Executive, a retired chief justice said.
Abdul Hamid Mohamad said it would look as if the government, particularly in the present political situation in Malaysia, wanted them to continue to hold their respective positions.
“It is very difficult for the Malaysian government to allay the public perception that it is preparing to have a pro-government court in case there are matters against it during that period,” he said in his latest blog posting on the appointments of Raus and Zulkefli.
His response came after Friday’s media statement from the Prime Minister’s Office (PMO) that the King had approved the then out-going chief justice Arifin Zakaria’s proposal to appoint Raus and Zulkefli 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.
Hamid said the appointments did not help the government to show the public that it was transparent, and instead reflected too much political meddling in the judiciary.
This, he said, was somewhat similar to the era of Dr Mahathir Mohamad which remained as a black spot in the history of Malaysia in general and the Malaysian judiciary in particular.
“As for the judges concerned, they appear to have compromised their independence in order to continue to hold their respective positions.
“The fact that it happened at the end of their career that was previously seen (as) unblemished is very unfortunate,” said Hamid who was the nation’s top judge for about a year from 2007.
He said the judiciary’s image had improved over the past decade but it appeared to have been tarnished again by this event.
Hamid said the PMO’ statement stated that the government was contemplating tabling a proposal in Parliament to raise the retirement age of Federal Court judges to 70.
He said the purpose of Article 122(1A) of the Federal Constitution was only for the appointment of additional judges to the Federal Court .
He said if the government managed to get a two-thirds majority in each of the two Houses of Parliament, the amendment might be able to solve the issue, provided it was made to take effect after the retirement of Arifin but before Raus and Zulkefli reached the mandatory retirement age of 66 years and six months.
“However, even with the amendment, so long as Article 122(1A) is read as enabling the additional judge to continue to hold his position prior to his retirement, the same may be repeated,” he said.
This meant, he said, a chief justice might be appointed as an additional judge after he attained the age of 70 years and six months and to continue to hold his position for the same period.
He said the proposed increase of the retirement age should be carefully weighed in the Malaysian context.
“Just because the increase of the retirement age of judges works (in) other countries does not mean it can work here or we should follow them,” he added.
Hamid ended by saying: “In my view, it is unwise for the Malaysian government to do what it has done and the way it is done, in this case. It is not good for (the) image of the Malaysian government, it is not good for the image of the Judiciary and it is certainly not good for the integrity of the judges concerned. It causes uncertainty to all other judges. It should not be done and should not be repeated.”
Hamid had voiced his disapproval through his blog in May that a further extension to Raus’ tenure would be unconstitutional and would cause uncertainty in the judiciary.
Similar opinions had been expressed by former Federal Court judge Gopal Sri Ram, former de facto law minister Zaid Ibrahim and current Malaysian Bar president George Varughese.