Hornbill Unleashed

July 10, 2017

Lapses in logic over Putrajaya’s defence of Raus ‘extension’

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

Article 122 ( 1A ) of the Federal Constitution reads as follows:

“Notwithstanding in this constitution contained, the Yang Di-Pertuan Agung acting on the advice of the chief justice of the Federal Court may appoint for such purposes or for such a 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 judge.

“Provided that no such additional judge shall be ineligible to hold office by reason of having attained the age of sixty-six years.”

No doubt, any person who is legally and constitutionally qualified, is entitled to be appointed as an additional judge despite the fact he or she has attained the age beyond sixty years of age. That is the crux of Article 122 ( 1A ).

It is understandable as to why the said article, particularly in its proviso, mentions the age which is beyond sixty years. This is because Article 125 ( 1 ) of the Federal Constitution vividly stipulates that the limit of age for any Federal Court judge is only 66 years.

Yes, the appointment of such a judge, having attained age beyond 66 years, may be duly extended for another period of six months. Apparently, any extension may only be exercised for a period of six months only.

Now, in February this year, Md Raus Sharif, who was appointed as a chief justice, had his appointment extended by the government for a period of six months. That was apparently in order.

New constitutional crisis?

His extension is nevertheless due on this coming August 4. There was a rumour that the government wished to extend further his appointment as a Chief Justice ( CJ ). The rumour has triggered a strong statement from the former chief justice Abdul Hamid Mohamad, who contended that such an appointment was unconstitutional.

The government, however, refuses to bow down to any pressure, not even from the former CJ. Yesterday, it announced that Raus is to be appointed as an additional judge cum the CJ for a period of three years under Article 122 ( 1A ) of the Federal Constitution.

The latest move by the government has sparked off a lot of controversies. Some even conclude that the decision has given rise to a new constitutional crisis. Is that so? I believe this to be so.

The government stated that the appointment of Raus as the CJ was duly recommended by the former CJ namely Ariffin Zakaria. Thus, the government, supported by Muhammad Shafee Abdullah, defended such an appointment as valid, under Article 122 ( 1A ) of our apex law.

With due respect, I humbly submit that the reason proffered by the government was seriously flawed.

Conflict of interest

If one looks at Article 122 ( 1A ), relied upon by the government, it is clear that despite the fact the appointment of any person as an additional federal court judge is made by YDPA, the King must, at the same time, act on advice from the CJ.

The issue now is whether such an advice was duly or constitutionally obtained? The government and Muhammad Shafee said the advice was duly obtained. The advice, according to them, came from the former retired CJ. If it is true, the issue is whether such an advice was rightly or properly obtained?

It is respectfully submitted that such an advice was wrongfully or unconstitutionally elicited. The upshot of that is that it renders the appointment of Raus, both as an additional judge or the CJ was invalid and unconstitutional.

Maybe the retired CJ did advise the YDPA to appoint Raus as the new CJ before his retirement. Nobody, however, questioned such an advice or any appointment based on such an advice. But the factual matrix of the present case is hugely different.

Now, we have a situation whereby Raus is still holding an office as the CJ, albeit by way of an extended period and whilst his extended tenure was still valid, the government decided to appoint him as an additional judge cum the CJ . The Government contended that such an exercise was done pursuant to Article 122 ( 1A ) of the Federal Constitution.

As I have pointed out earlier, any appointment of any additional judge pursuant to Article 122 ( 1A ) must get advice from the CJ. It is not disputed that the CJ mentioned in such an Article must be a current and serving, and not a retired, CJ.

So, it is clear that the serving CJ, at the material time, was Raus and not Arifin. How on earth, could Raus act independently, free from any bias or conflict of interest, in advising the YDPA to appoint the additional judge or the CJ who was none other than himself?

Source : Malaysiakini by Mohamed Hanipa Maidin
MOHAMED HANIPA MAIDIN is the MP for Sepang and Parti Amanah Negara central committee member.



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