KUALA LUMPUR: A law expert has joined other legal minds and lawmakers in questioning if a former chief justice could advise the Yang di-Pertuan Agong on the appointment of additional judges to the Federal Court.
Professor Dr Shad Saleem Faruqi said being a constitutional monarch, the king had to act on the advice of the prime minister as provided under Article 40 of the Federal Constitution.
“My personal interpretation is that the king must act on the advice of the prime minister in all circumstances except where the constitution states the monarch could exercise his discretion,” he said.
Shad made this remark at a forum yesterday on Judicial Independence and Separation of Powers titled, “A New Hope in Light of Semenyih Jaya?”
He said this in response to comments on the internet by a “distinguished lawyer” that the prime minister did not come into the picture in the appointment of additional judges.
Last week, former chief justice Arifin Zakaria told FMT that it was within his power to advise the king to consider appointing Chief Justice Raus Sharif and Court of Appeal president Zulkefli Ahmad Makinudin as additional judges.
Arifin, who left office on March 31, said under Article 121 (1A), it was the prerogative of the king to accept his advice.
That provision states the king can appoint for a specific term or purpose any person who has held high judicial office in Malaysia.
Shad said if that was the interpretation, then the king becomes an absolute monarch.
“For example, Article 41 states the king is the supreme commander of the armed forces. Can the king then order the invasion of another country,” he asked.
Shad, who is currently holder of the Tunku Abdul Rahman Chair in Universiti Malaya, said that provision on the armed forces did not explicitly state that the king, as commander-in-chief, must act on the advice of the prime minister.
He acknowledged the king has discretionary powers like the appointment of the prime minister, dissolution of parliament and delaying the passage of a legislation.
A statement from the Prime Minister’s Office (PMO) on July 7 said the king had approved Arifin’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.
Since then, politicians, former judges, lawyers and the Malaysian Bar have questioned whether Arifin’s advice to the king was constitutional.
Former chief justice Abdul Hamid Mohamad in a blog posting last week said the judiciary would be perceived as pro-government should Raus and Zulkefli hold on to their posts.
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.
However, senior lawyers Muhammad Shafee Abdullah and Jagjit Singh took the stand that Arifin’s action was legal and the extension of tenure for Raus and Zulkelfi was constitutional.