As Attorney-General is principal legal adviser to the government and not the final arbiter of law, had he advised the Prime Minister of Article 130 of the Malaysian Constitution to seek Federal Court opinion on whether Raus and Zulkefli’s re-appointment as Chief Justice and Court of Appeal President are constitutional or otherwise?
The Attorney-General Tan Sri Mohd Apandi Ali has finally spoken on the new constitutional crisis he had helped to precipitate as the principal legal adviser to the Federal Government, declaring that the re-appointment of Tan Sri Md Raus Sharif as Chief Justice and Tan Sri Zulkefli Ahmad Makinudin as Court of Appeal President are constitutional.
But these are just superfluous words, for clearly, without the Attorney-General’s approval and sanction, the Prime Minister’s Office would not have issued the controversial media statement dated 7th July 2017 announcing the unconstitutional extension of tenure of Raus and Zulkefli’s as Chief Justice and Court of Appeal President respectively following their unconstitutional appointment as “additional judges” under Article 122(1A).
What the Attorney-General has written in his article in Berita Harian yesterday declaring that the re-appointment of Raus and Zulkefli as Chief Justice and Court of Appeal President respectively are constitutional does not add anything new to the arguments in the controversy as Apandi only repeated run-of-the-mill arguments defending the reappointment of Raus and Zulkefli in the two top judicial posts in the land as constitutional.
Apandi can go to the rooftops and shout a thousand times that the re-appointments of Raus and Zulkefli as Chief Justice and Court of Appeal President respectively are constitutional – but this does not necessarily make them constitutional.
Apandi, as Attorney-General, is the principal legal adviser to the government and not the final arbiter of law in Malaysia.
In view of the constitutional controversy and crisis precipitated by the “unprecedented” re-appointments of the two top judicial posts, with far-reaching impact on the doctrine of separation of powers and the rule of law in Malaysia, Apandi’s duty is not to write run-of-the-mill articles to UMNO/Barisan Nasional owned/controlled newspapers, but to advise the Prime Minister about Article 130 of the Malaysian Constitution and to seek Federal Court opinion whether Raus’ and Zulkefli’s re-appointments as Chief Justice and Court of Appeal President respectively are constitutional or otherwise?
Last Wednesday, Pakatan Harapan leaders led by Tun Dr. Mahathir Mohamad (Bersatu), Datuk Seri Dr. Wan Azizah Wan Ismail (PKR), Mujahid Yusuf Rawa (AMANAH) and myself (DAP) petitioned the Yang Di Pertuan Agong Sultan Muhammad V to refer the government’s decision to extend the tenures of the two top judicial posts, the Chief Justice and the Court of Appeal President, to the Federal Court.
Article 130 of the Malaysian Constitution on “Advisory jurisdiction of Federal Court” states:
“130. The Yang di-Pertuan Agong may refer to the Federal Court for its opinion any question as to the effect of any provision of this Constitution which has arisen or appears to him likely to arise, and the Federal Court shall pronounce in open court its opinion on any question so referred to it.”
Will Apandi support the petition of Pakatan Harapan leaders and advise the Prime Minister to advise the Yang di Pertuan Agong to refer the critical issue as to whether the extensions of tenure of Raus as Chief Justice and Zulkefli as Court of Appeal President are constutitutional, bearing in mind two important matters:
Firstly, the adverse effects on 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; and
Secondly, the weight of juristic, legal and informed public opinion against the turning, twisting and torture of the Constitution to justify the two unconstitutional re-appointments – which include a former Chief Justice, a former Federal Court judge , a former Attorney-General, a former de facto Law Minister, and the Malaysian Bar in the form of an Extraordinary General Meeting specifically on the issue last Thursday.
In fact, I believe the outcome would be quite unanimous in opposing the unconstitutional extension of tenures of the two top judicial posts in the land if the Prime Minister had solicited the views and advice of both the serving and retired judges in the country from all three tiers of the judiciary.
Will the Attorney-General himself set the example of being true to this oath of office to “preserve, protect and defend” the Malaysian Constitution by advising the Prime Minister to support the Pakatan Harapan petition to the Yang di Pertuan Agong to refer the constitutional controversy to the Federal Court?