PETALING JAYA: A former judge says a special panel of retired Federal Court judges should be formed to decide the constitutionality of appointing Chief Justice Raus Sharif and Court of Appeal president Zulkefli Ahmad Makinudin as additional judges to remain in their posts.
The judge, who spoke on condition of anonymity, said Chief Judge of Malaya Ahmad Maarop could advise the king to appoint a panel of three or any other odd number of retired senior judges to determine the matter in the event that there was a legal challenge.
He said Article 122 (1A) of the Federal Constitution could be relied on in the appointment of retired senior judges as additional judges.
Article 122 (1A) states that the king, on the advice of the chief justice, can appoint for a specific term or purpose any person who has held high judicial office in Malaysia.
“This provision states that the king can also appoint additional judges for a specific purpose and, as such, could be used to decide the position of Raus and Zulkefli,” he told FMT.
The judge said due to the disability of Raus and Zulkefli, Ahmad, as the next most senior judge in the judiciary, could step in to exercise the powers of the chief justice and advise the king.
“Ahmad could assume the powers of the chief justice for this particular purpose to advise the king to appoint the special panel, as all current Federal Court judges should not sit to consider the issue on grounds of conflict of interest.
“It is also inappropriate for the sitting judges to hear and decide on the status of their superiors,” he added.
The judge said Article 131A, read together with Section 9 of the Courts of Judicature Act 1964, allowed the most senior judge to exercise the powers of the chief justice during his incapacity or absence.
His response followed a government announcement on July 7 that the king had accepted former chief justice Arifin Zakaria’s advice to appoint Raus and Zulkefli as additional judges.
The king, on the advice of the prime minister and after consulting the Conference of Rulers which met in May, also 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.
The Malaysian Bar, which called the appointments “blatantly unconstitutional”, will hold an extraordinary general meeting tomorrow to obtain the views of its members.
The Sabah Law Society and the Advocates Association of Sarawak have urged Raus and Zulkefli to consider the potential risk to public confidence in the judiciary in deciding whether to remain in office.
Former chief justice Abdul Hamid Mohamad meanwhile voiced his disapproval through his blog in May, saying a further extension to Raus’ tenure would be unconstitutional and would cause uncertainty in the judiciary.
In a posting last month, Hamid said the judiciary would be perceived as pro-government if Raus and Zulkefli hold on to their posts.
Retired Federal Court judge Gopal Sri Ram said the tenure of Raus could not be extended as it was not provided for in the constitution.
However, senior lawyer Muhammad Shafee Abdullah, in a commentary on July 8, said the tenures of Raus and Zulkefli could be extended as no provisions in the constitution prohibited this.
Shafee’s view was supported by senior lawyer Jagjit Singh, who said the extension of Raus and Zulkefli’s current tenures would take effect after their retirement.
“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.