Hornbill Unleashed

July 10, 2017

Ex-Court of Appeal judge says Raus’ ‘extension’ is unconstitutional

Filed under: Politics — Hornbill Unleashed @ 8:01 AM

A retired Court of Appeal judge said the extension of Chief Justice Md Raus Sharif for another three years despite being 66 years and six months on Aug 4 is unconstitutional.

The former judge who spoke to Malaysiakini on condition of anonymity said he has read former Chief Justice (CJ) Abdul Hamid Mohamad’s view on the matter, where he warned against such practices.

“The former CJ Abdul Hamid has given his views on the appointment. I agree with his views.

“The appointment is unconstitutional and invalid,” the retired judge told Malaysiakini.

This is despite the statement from the Prime Minister’s Office (PMO) late last night saying that former CJ Arifin Zakaria had recommended the extension.

It was reported that the PMO announced the extension of Md Raus and Court of Appeal president Zulkefli Ahmad Makinudin for a period of three and two years respectively.

Hamid who was chief justice in Nov 2007 to Oct 2008, had said Article 122 (1A) provides for the appointment of an additional judge of the Federal Court and not a back door for appointing a CJ.

Article 122 (1A) states that “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”.

The former CJ pointed out that the clause clearly refers to Yang di-Pertuan Agong “may appoint”.

“So, it is an appointment, not an extension. In other words, the term of office of a CJ cannot be extended pursuant to this clause.

“Secondly, that clause talks about ‘an additional judge of the Federal Court’. The words ‘an additional judge of the Federal Court’ can only mean what they say, that is for an additional judge at the apex court to do the work of a Federal Court judge, not the CJ, the head of the judiciary. So, this clause does not provide for the Yang di-Pertuan Agong to appoint a CJ,” he had said in his blog.

Reappointment of Justice Tan Kok Wha  

It is worth noting that the appointment of an additional judge for the Federal Court only happened once before after Jeffrey Tan Kok Wha (photo) had retired.

Arifin, when asked on Tan’s appointment as an additional judge, said it was provided for under the constitution.

“This is provided for under Article 122(1A) of the Federal Constitution, and has been done 50 years ago, with (judge) McIntyre,” Arifin had said.

Tan retired in November 2015 but was re-appointed to the apex court in July 2016.

Hamid also warned an extension of a CJ’s tenure beyond the 66 years’ six months may compromise the independence of the judiciary.

“A CJ, who wants to be reappointed after reaching the age of 66 years and six months or who has (wrongly) been reappointed may go out of the way to please the Yang di-Pertuan Agong and the prime minister, hoping to be reappointed after his term of office expires or after his reappointment expires.

“This trend may go down the line and the independence of the judiciary is compromised. It would lead to uncertainty among the judges regarding their career. They would not know who would be the CJ and for how long and what are the chances of their own promotions.

“Therefore, with the greatest respect to Md Raus, I am of the view that his purported appointment after he has attained the age of 66 years and six months for a further period of two years, if true, is unconstitutional,” Hamid had said.

Source : Malaysiakini


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