The revelation by former Chief Justice Tun Zaki that extension of Raus’ tenure as Chief Justice was made without recommendation of Judicial Appointments Commission makes the extension not only unconstitutional and unprecedented but most improper

The newly-reappointed Chief Justice Tan Sri Md Raus Sharif has conceded that his reappointment is “unprecedented” but said that it is still constitutional.

However, he left the final decision on the constitutionality of his position to the court.

This is indeed doubly unprecedented – leaving the country with a Chief Justice who is believed by the Malaysian Bar through a emergency EGM and many jurists, including many serving and former top judges in the land, unconstitutionally occupying the top judicial post in the land for the next three years.

Surely, there can be no greater blow to the independence, impartiality and professionalism of the judiciary than for the country to have a judiciary which is headed by a person for next three years enmeshed in a controversy about the constitutionality of his extension of office?

A top judicial officer who cherishes unquestioned respect for the rule of law and unblemished standing of the judiciary not only in the eyes of the bench and bar but the Malaysian populace would want to spare the judiciary from the agony of a controversy lasting for the next three years over the constitutionality of the extension of the Chief Justice of the land.

The revelation by former Chief Justice Tun Zaki Tun Azmi in an article in New Straits Times yesterday that Raus’ extension as Chief Justice was made without recommendation of the Judicial Appointments Commission (JAC) has made Raus’ reappointment as Chief Justice not only unconstitutional and unprecedented, but even most improper.

Tun Zaki in his article said:

“IT is pointed out that under the Judicial Appointments Commission (JAC) Act, Section 21 empowers the JAC to recommend to the prime minister candidates for the offices of chief justice and the president of the Court of Appeal.

“Section 26 envisages a report sent to the prime minister. It is alleged that if the JAC had not recommended to the prime minister the reappointment of the chief justice and the president, then the prime minister’s advice to the Yang di-Pertuan Agong was in violation of a mandatory procedural requirement.

“In rebuttal to this argument, it can be pointed out that the JAC is an extra-constitutional body.

“It cannot replace or substitute the procedures and requirements of the supreme constitution. The supreme constitution in Article 122B(1) on the appointment of judges does NOT require the prime minister to act on the recommendation of the JAC.

“In any case, the procedures of the JAC Act are not mandatory, but merely directory. The prime minister is not required to act on the JAC’s recommendations. The prime minister is not limited to the candidates recommended by the JAC.

“From the point of view of constitutional and administrative law, the power conferred on the prime minister by the constitution cannot be usurped by the JAC or abdicated by the prime minister. The prime minister’s discretion under Article 122B(1) is not fettered by the deliberations of the JAC.”

The Prime Minister, Datuk Seri Najib Razak and the Attorney-General Tan Sri Mohamad Apandi Ali should explain whether they fully endorse Tun Zaki’s views that the JAC is an entirely irrelevant and inconsequential body.

Tun Zaki has added to the murkiness of the circumstances surrounding the unconstitutional extension of Raus’ extension as Chief Justice, especially as it affected the promotion opportunities and prospects of at least eight Federal Court judges, including three women, and most importantly, the denial of the opportunity of Tan Sri Richard Malanjum as the first Chief Judge of Sabah and Sarawak to be appointed as Chief Justice of Malaysia.

It is sad and most unfortunate that Raus did not see that his best contribution to the judiciary lies in his declining the unconstitutional extension of his tenure as Chief Justice, and even more unfortunate, his failure to see the merit of two proposals which I made in the event that he is not prepared to decline the unconstitutional extension:

• Firstly, announce that he will await the Federal Court decision on the constitutionality or otherwise of his re-appointment as Chief Justice; and
• Secondly, announce that he will recuse himself from all court cases where Datuk Seri Najib Razak is involved as a party, whether as Prime Minister, UMNO President or in his private personal capacity for the next three years, during his extended tenure as Chief Justice.

The ball is now in Tan Sri Zulkefli Ahmad Makinuddin’s court.

Will Zulkefli decline the two-year extension of his tenure as Court of Appeal President when his tenure as COA President ends on Sept. 27?