PETALING JAYA: Dr Mahathir Mohamad is not obliged to accept recommendations of the Judicial Appointments Commission (JAC) in appointing judges to occupy administrative positions in the judiciary, three retired judges said.
They said the prime minister could choose to follow a provision in the Federal Constitution which was superior to the Judicial Appointments Commission Act which came into force in 2009.
Gopal Sri Ram said the prime minister was free to consult members of his Cabinet, the attorney-general, the Bar Council and any other persons that he trusts before deciding on his choice of chief justice (CJ).
“Once he makes his decision, the Conference of Rulers must be consulted. In accordance with convention, the conference must accept the PM’s choice, as must the Yang di-Pertuan Agong, once the PM makes his recommendation.”
He said this in response to reports that CJ Raus Sharif had tendered his resignation last week but this would take effect only on July 31.
Raus and Court of Appeal president Zulkefli Ahmad Makinudin’s appointments last year to remain in their positions, despite exceeding their mandatory retirement age, is now subject to a legal challenge in the Federal Court.
Since 2009, the JAC, which is chaired by the CJ, proposes candidates for elevation to the superior courts (High Court, Court of Appeal and Federal Court) and also to occupy the administrative positions in the bench.
It is unclear whether Raus has submitted names or he would be proposing names to the prime minister since his resignation is six weeks away.
“By reason of his resignation, Raus should now vacate his position as chairman of the JAC. In any event, the PM is not bound by the recommendations made by the JAC,” Sri Ram said.
He said Article 122B (1) states judges and all administrative position holders shall be appointed by the King, acting on the advice of the prime minister, after consulting the Conference of Rulers.
Retired Court of Appeal judge Mohd Hishamudin Yunus is on the same page as Sri Ram. He said regardless of the legality of Raus’s appointment as CJ, under the constitution, the prime minister was not bound to abide by the recommendations of the JAC.
Another retired Court of Appeal judge Mah Weng Kwai said the Federal Court had yet to rule whether the appointments of Raus and Zulkefli were unconstitutional and unlawful.
“Hence, to date, the appointments are legal in the eyes of the court, but just that Raus and Zulkefli have decided to resign.
“It is debatable whether the resignations mean they concede the appointments were unconstitutional. But one cannot just assume that.”
He said judicial appointments and promotions were handled by the JAC, of which Raus is chairman until July 31.
“The JAC makes recommendations to the prime minister who may decide not to agree with the proposals.”
Chief Judge of Sabah and Sarawak Richard Malanjum and Federal Court judge Zainun Ali are said to be the frontrunners for the posts of Chief Justice and Court of Appeal president.
However, both have less than a year before their retirement.
Zainun, who is on a six-month extension, will retire on Oct 10 while Malanjum could remain on the bench until April next year if he too gets the extension.
Others who could be considered are Chief Judge of Malaya Ahmad Maarop, Federal Court judges Azahar Mohamed, Zaharah Ibrahim, Ramly Ali, Alizatul Khair Osman Khairuddin and Rohana Yusof.