Shafee defends 'additional judge' route to keep CJ on the bench

At least two retired senior judges have opined that the appointment of Chief Justice (CJ) Md Raus Sharif as an additional judge of the Federal Court was unconstitutional but senior lawyer Muhammad Shafee Abdullah has a differing view.

Muhammad Shafee said almost everyone thought Md Raus had appointed himself and Court of Appeal President Zulkefli Ahmad Makinudin as an additional judge but it was former CJ Arifin Zakaria who had appointed him prior to retirement on March 30, 2017.

"He may have been influenced by the fact that the two top judges after him would have only four months and six months respectively to hold the two top posts.

"The former CJ must have felt bad about this 'flash in the pan' tenure as compared to his, which was more than 6 years," he said.

Top judges face a mandatory retirement age at 66 and six months but an additional judge does not face the same age limit.

Shafee pointed out prior to these two appointments, Arifin had also brought back federal court judge Jeffrey Tan Kok Hwa.

He added that similarly in 1965, Federal Court judge S Chelvasingam MacIntyre was brought back as an additional judge.

However, in these instances, the additional judges were not the CJ or Court of Appeal president.

But Shafee argued that nothing in the Federal Constitution forbade an additional judge from being a CJ or Court of Appeal president.

"No provisions in the Federal Constitution seem to prohibit it. Why not utilise the best legal brains for the top job.

"It is good to have additional judge concept to support 'dead wood' policy," he said.

Shafee said most Commonwealth countries suffer "judicial brain shortage" to this day and Malaysia is no exception.

"To be a good apex judge clinical intelligence and knowledge alone is not sufficient. One would need emotional intelligence as well, a rare combination of talents," he said.

Shafee also highlighted that the prime minister had no role in the appointment of additional judges as it is purely between the serving chief justice and the Yang Di-Pertuan Agong under Article 122(1A) of the Federal Constitution.

"But for them to continue in their current posts beyond their retirement age, they have to be technically appointed as such by the Yang Di-Pertuan Agung on the advice of the prime minister after consulting the Conference of Rulers under Article 122(B).

"Of course, the prime minister would have to consider the opinion the of Judicial Appointment Committee (JAC)," he said.

The announcement of the appointments yesterday was made by the Prime Minister's Office.

Arifin, prior to his retirement, had recommended that the retirement age of judges be raised to 70 years old.

Shafee said this would be consistent with the Commonwealth and international jurisprudence and practices.

Shortly before the appointments of Md Raus and Zulkefli as additional judges to continue their tenure as chief justice and Court of Appeal president, former CJ Abdul Hamid Mohamad had opined that it would be unconstitutional.

He argued the fact that the appointment of an additional judge has to be on the recommendation of the chief justice meant it was not for an additional judge to be the chief justice.

He added that the additional judge mechanism should not be a backdoor to extend the tenure of top judges as it would become a case of abuse.

A retired Court of Appeal judge had also expressed similar views.- Mkini