Review Article 122 (1A) to prevent repeat of 2017 judicial crisis, says lawyer

 

A constitutional crisis erupted in 2017 when the outgoing chief justice advised the King to reappoint two retiring judges.

PETALING JAYA: A lawyer has urged the government to take another look at Article 122 (1A) of the Federal Constitution to prevent a repeat of judges who retire mandatorily holding administrative positions in the judiciary.

Another lawyer wants the provision to be amended to allow the chief justice to appoint retired judges from the Commonwealth to hear complex cases to instil confidence in litigants.

Article 122 (1A) states that the Yang di- Pertuan Agong, acting on the advice of the chief justice, 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.

Lawyer Syed Iskandar Syed Jaafar Al Mahdzar said a review of this provision was timely in light of a memorandum of understanding between the ruling coalition and Pakatan Harapan on “political stability and transformation” where, among other things, they agreed to enhance the independence of the judiciary.

Syed Iskandar Syed Jaafar Al Mahdzar.

He noted that a constitutional crisis erupted when then outgoing chief justice Arifin Zakaria advised the King, a day before his retirement on March 31, 2017, to appoint Raus Sharif and Zulkefli Ahmad Makinudin as additional judges upon their retirement.

Raus succeeded Arifin as chief justice while Zuklelfi was elevated as Court of Appeal president on April 1, 2017.

Both were to retire on Aug 3 and Sept 27, 2017, respectively upon reaching the mandatory retirement age of 66 plus six months.

The Najib Razak Barisan Nasional government, however, announced on July 7, 2017 that Raus would remain in office as chief justice until August 2020 while Zulkefli would remain as Court of Appeal president until September 2019.

The peninsula-based Malaysian Bar and its counterpart, the Advocates Association of Sarawak (AAS), went to court and sought several declarations whether Raus and Zulkefli could remain in their administrative positions beyond the mandatory retirement age.

The two groups also questioned whether it was legal for Arifin to advise the King to nominate a sitting judge as additional judge when such future appointments would only take effect when the chief justice was no longer in office.

In September 2018, a seven-member Federal Court bench declined to answer questions concerning the appointments of Raus and Zulkefli, saying the matter had become academic as both had resigned from office two months earlier.

Muhammad Rafique Rashid Ali.

“That Article should be amended to remove any ambiguity since the apex court declined to answer legal questions that were posed,” Syed Iskandar said.

Lawyer Muhammad Rafique Rashid Ali said appointing retired judges from the Commonwealth who were specialists in particular fields of law to sit with Federal Court judges would enhance public confidence.

“The public are the consumers of the service of justice. It will strengthen their belief in the judiciary’s legitimacy as the guardian of the rule of law,” he said.

Rafique cited the case of Singapore which amended its Supreme Court of Judicature Act to set up the International Commercial Court with the view of allowing international judges to sit, specifically in commercial cases, as judges of the island republic. - FMT