If there is a secret ballot among the hundred-odd judges in the three tiers of judiciary, the overwhelming majority will uphold the constitution and support the position that it is unconstitutional to extend the tenures of Chief Justice and Court of Appeal President
Thanks to the Minister in the Prime Minister’s Department, Datuk Seri Azalina Othman Said for admitting clearly that the appointment of Chief Justice Tan Sri Md Raus Sharif and the Court of Appeal President Tan Sri Zulkefli Ahmad Makinudin as additional judges so that they can continue as the two top judges in the country were made on the advice on Tun Arifin Zakaria on March 30, his last day as Chief Justice before his retirement.
Article 122(1A) in the Federal Constitution has not been complied with in the appointment of Raus and Zulkefli as as “additional judges”, unless the Chief Justice in office at the time of the appointment had also advised the Yang di Pertuan Agong on the matter.
Raus is the Chief Justice at present. Did he advise the Yang di Pertuan Agong on the appointment of himself and Zulkefli as “additional judges” under Article 122(1A) of the Federal Constitution, which reads:
“122(1A) Notwithstanding anything in this Constitution contained, the Yang di-Pertuan Agong acting on the advice of the Chief Justice of the Federal Court may appoint for such purposes or for such period of time as he may specify any person who has held high judicial office in Malaysia to be an additional judge of the Federal Court: Provided that no such additional judge shall be ineligible to hold office by reason of having attained the age of sixty-six years.”
It is clear that Article 122(1A) refers to the Chief Justice at the operative time of the appointment of “additional judges” by the Yang di Pertuan Agong, and cannot be stretched to include previous Chief Justices, whether the advice was made when they were still Chief Justice or after their retirement.
If Raus had endorsed Arifin’s advice, then it would give rise to the conflict-of-interest situation where Raus advises the Yang di Pertuan Agong on his own appointment as an additional judge under Article 122(1A) with the purpose of extending his tenure as Chief Justice for three years. This is clearly unacceptable and will make Raus’ extension as Chief Justice doubly unconstitutional after August 3.
Otherwise we will have the ludicrous situation whereby Constitutional provisions on the Yang di Pertuan Agong acting on the advice of the Prime Minister could be interpreted as the Yang di Pertuan Agong acting on the advice of previous Prime Ministers while in office – i.e. acting on the advice of former Prime Ministers, whether Tun Dr. Mahathir Mohamad or Tun Abdullah Badawi.
The Malaysian Bar President George Varughese had rightly said that the country does not want a repeat of the 1988 Constitutional Crisis, which adversely affected the Judiciary and caused repercussions that resounded for decades.
In 1988, the Lord President Tun Salleh Abbas was sacked and five Supreme Court judges Tan Sri Azmi Kamaruddin, Tan Sri Eusoffe Abdoolcader, Tan Sri Wan Hamzah Mohamed Salleh, Tan Sri Wan Suleiman Pawanteh and Datuk George Seah stood up for the important principles of the doctrine of separation of powers, the independence of the judiciary and the rule of law and paid a heavy price for their courageous stand, with Wan Suleiman and George Seah sacked as Supreme Court judges.
Do we have modern-day Azmi Kamaruddin, Eusoffe Abdoolcader, Wan Hamzah, Wan Suleiman and George Seah among the hundred-odd judges in the Federal Court, Court of Appeal and High Courts in Malaysia today?
It is worth noting that during the whole period of the Judiciary crisis resulting from the sacking of Tun Salleh Abas as Lord President, the present Prime Minister, Datuk Seri Najib Razak was a member of the Cabinet. Can he wash his hands from the crisis like Lady Macbeth?
I have no doubt that if there is a secret ballot among the hundred-odd judges in the three tiers of judiciary, the overwhelming majority will uphold the constitution and support the position that it is unconstitutional to extend the tenures of Chief Justice and Court of Appeal President as the Prime Minister has sought to do.
It would appear that the 1MDB scandal is not enough for the Najib administration to attract international infamy and ignominy for Malaysia in the international community, to the extent of being catapulted into the stratosphere of a global kleptocracy, and that we want to commit more heinous misdeeds which go against the very grain of the principles and precepts of good governance, like the appointment of an illegal and unconstitutional Chief Justice and Court of Appeal President violating all canons of good governance and Constitutional provisions.
Malaysia was in the dock of international opinion for some 15 years for violating the principles of doctrine of separation of powers, the independence of the judiciary and the rule of law and we seem to be courting another extended period in the dock of international opinion if we flout the Constitution to have an illegal and unconstitutional Chief Justice and Court of Appeal President.
It is wrong for Azalina to say that those who think that the appointments of Chief Justice Md Raus Sharif and Court of Appeal president Zulkefli Ahmad Makinudin as additional judges and the extension of their tenures as the two top judges in land are unconstitutional can challenge the appointments in court.
There are two ways to resolve the crisis with subjecting the judiciary and the country to another bout of interntional embarrassment and ignominy.
One is for Raus and Zulkefli to decline the appointments as additional judges and the unconstitutional extension of their tenures as Chief Justice and Court of Appeal President respectively.
Another is for the Cabinet to step in to nip the incipient constitutional crisis in the bud when it meets today.
The 36 Ministers should ask themselves what is the use of the Cabinet if it is unable to save the country from another bout of international infamy and ignominy!
Will the Cabinet meeting today discuss the latest constitutional crisis in the country and take the necessary actions to nip the crisis in the bud, or will the Ministers behave like the traditional three monkeys – with eyes that see not, ears that hear not and mouths that speak not?