What was the point in rushing through the appointments of additional judges as if there were pending cases that could not wait a day longer, asks P Ramakrishnan.
In proposing the extension of the tenures of Chief Justice Mohd Raus Sharif and of Court of Appeal president Zulkefli Ahmad Makinudin beyond their mandatory retirement age even before they had assumed their current office, it would appear the former retiring Chief Justice, Arifin Zakaria, has defied constitutional provisions, according to the many eminent legal minds that oppose this extension of tenure.
Apparently, this extension of tenure was undertaken in the light of Article 122 (1A) of the Federal Constitution. This provision states:
“Notwithstanding anything in this Constitution contained, the Yang di-Pertuan Agong acting on the advice of the CJ of the Federal Court may appoint for such purposes or for such period of time as he may specify any person who has held (my emphasis) 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.”
The operative words are “who has held” – meaning the person to be appointed as an additional judge must have retired and not currently be in service. This provision does not cater for serving persons to be considered as additional judges. This much is very clear.
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It is a matter of grave concern that the former CJ failed to discern this simple fact which is very clear; it is not at all ambiguous.
Both the current incumbents do not fall under this category of retired persons. They are still in service. It is because of this fact that concerned and caring Malaysians are of the view that their appointments as additional judges are null and void.
The question that surfaces is this: should this proposed appointment of additional judges be made by the outgoing chief justice or rightly by his successor, the incoming one? Couldn’t this appointment be made by Mohd Rauf Sharif after assuming the office of chief justice?
What was the urgency that compelled the outgoing chief justice to take on the responsibility of the incoming one, who was due to assume office after Arifin Zakaria had retired on 30 March 2017? What was so pressing that these appointments could not have waited after 30 March?
In any case, the services of the additional judges were not required immediately. So what was the point in rushing through this as if there were pending cases that could not wait a day longer? Clearly, there was no urgency to fill these vacancies by Arifin Zakaria!
The appointments of the additional judges would have taken effect only after four or five months. Then why did he go beyond his duty to undertake this responsibility? Could this be perceived as usurping the duties of the legitimate chief justice who would have succeeded him immediately on his retirement?
It is a matter of grave concern that the former chief justice had failed to discern this, which is very obvious – and not at all ambiguous.
Thinking Malaysians are justified in demanding to know what caused the appointments to be accelerated. Was there a deliberate scheme to ensure that the chief justice remained in office for another three years continuously beyond the constitutionally compulsory retirement age?
Another pressing question with regard to this is: are there no competently qualified judges to succeed both Md Raus Sharif and Zulkefli Ahmad Makinudin? Surely the judiciary cannot be in such terrible straits!
According to Sarawak PKR chairperson Baru Bian, who is also the state assembly member for Ba’kelalan, the Chief Judge of the High Court in Sabah and Sarawak Richard Malanjun is “the most suitable candidate”, taking into account his seniority and capability.
Baru Bian emphasised, “It is widely known that he is even more senior than the current chief justice and the president of the Court of Appeal.”
This eminently qualified and well deserving judge was once before overlooked and marginalised when Md Raus Sharif was promoted. Should he be sidelined yet again? For no reason at all? Does it mean that however qualified and deserving a justice from East Malaysia might be, he will be denied promotion? If so, this is a direct slap for Sabahans and Sarawakians.
If the territorial supremacy of West Malaysia had disqualified a candidate from East Malaysia, how do you explain the denial of promotion of others in West Malaysia? It is this contradiction that raises the question of confidence in the judiciary. Is it necessary to have someone at the top whose appointment erodes our confidence in the justice system?
The Malaysian Bar President George Varghese had rightly slammed the appointment as blatantly unconstitutional.
From another aspect, it would appear that the appointments have violated the tenets of the Rukun Negara as well.
Principle No. 3 refers to “the supremacy of the Constitution”. It is clear that the supremacy of the Constitution was not honoured or respected in these appointments.
Principle No. 4 refers to “the rule of law”. If the rule of law is anything to go by, then the succession of office should have taken place according to procedure, smoothly and automatically.
Principle No. 5 refers to “courtesy and morality”. If courtesy and morality had been observed strictly, then East Malaysia candidates need not be ignored unfairly and unjustifiably.
All said and done, it is now left to the people to decide whether what was done is acceptable. This kind of behaviour cannot be tolerated or condoned. It is for us to right the wrong. This can only be done with the rejection of a regime that does not bother about our views; which most times rides roughshod over our rights.
Change is possible. It is in your hands!