It would upset and disappoint Malaysians terribly if the tenure of the current Chief Justice, Tun Ahmad Fairuz Sheikh Abdul Halim, were to be extended. It would seriously undermine the confidence of the people in the judiciary to a point of no return.
The judiciary is already in a shambles and there is no need to degrade it further by extending the tenure of the Chief Justice of the Federal Court.
On behalf of all Malaysians, Aliran would like to politely and humbly appeal to His Majesty, the Yang diPertuan Agong, to reject Ahmad Fairuz’s application to His Majesty for a six-month extension of tenure. Article 125(1) states: Subject to the provisions of Clauses (2) to (5), a judge of the Federal Court shall hold office until he attains the age of sixty-six years or such later time, not being later than six months after he attains that age, as the Yang di-Pertuan Agong may approve.
In this extension of tenure of office, the Prime Minister does not seem to have any role to play. It would appear that His Majesty, the Yang di-Pertuan Agong, solely decides on this matter. It is the absolute discretion of His Majesty, the Yang di-Pertuan Agong.
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By now it is very clear that it is the collective view of all thinking Malaysians that Ahmad Fairuz does not deserve to be in office even a minute longer. He must go – and go in the soonest time frame that is possible. After the disgraceful Lingam tape, it is only morally correct that he should not be around to denigrate an institution that is the custodian of justice. It is as simple as that.
Ahmad Fairuz has not openly and publicly denied that he is the person on the other end of the telephone conversation. He has not said any thing to dispel all the rumours that link him to various episodes in the promotion and elevation of judges. Neither is he spared from the negative and speculative judgments that he has been associated with. How could such a person who has miserably failed to put the record straight be considered for an extension of tenure of office?
We are not persuaded by Datuk Seri Nazri’s claim, according to the NST of today, that “the Yang di-Pertuan Agong has to act on the advice of the prime minister on extending the tenure of the chief justice”, who is due to retire at the end of the month. He further reiterates that the “king as a constitutional monarch was bound by the prime minister’s advice in the appointment and promotion of judicial officers. This includes whether to extend by six months the tenure of the chief justice after he attains the compulsory retirement age of 66”.
Nazri seems to conveniently forget that in the appointment and promotion of judicial officers, His Majesty is required to act “after consulting the Conference of Rulers”. “After consulting the Conference of Rulers” does not seem to suggest that it is purely an academic exercise. It is more than that. There has to be deliberation to arrive at a collective decision – no matter what Nazri may insist. There are others in the legal circle who do not share Nazri’s interpretation of the Federal Constitution.
Under the Federal Constitution, when it comes to “tendering his advice as to the appointment of a judge”, the Prime Minister does not simply pluck out a name for consideration out of thin air. He “shall consult” the respective heads of the Federal Court, the Court of Appeal and the High Court before submitting the names to His Majesty, the Yang di-Pertuan Agong. Just as in this case, “shall consult” does not mean a meaningless chat with the respective heads but refers to a constructive discussion and recommendation; this same process applies when His Majesty consults the Conference of Rulers.
Aliran would like to advise Nazri not to confuse the public with his one-sided interpretation of the Federal Constitution.
17 October 2007