Sabah, Sarawak law bodies voice concerns over CJ’s extended tenure

The Sabah Law Society (SLS) and the Advocates Association of Sarawak (AAS) today jointly expressed concerns over the extended tenure of chief justice Md Raus Sharif and that of the president of Court of Appeal (PCA) Zulkefli Ahmad Makinudin.

The two organisations are the equivalent to the Malaysian Bar which operates in Peninsular Malaysia.

SLS president Brenndon Keith Soh and AAS president Ranbir Singh Sangla said they did not doubt the capability of Raus and Zulkefli, but questioned the timing and mode of their extensions.

They noted that Article 125(1) of the Federal Constitution states “a judge of the Federal Court shall hold office until he attains the age of 66 years or such later time, not being later than six months after he attains that age, as the Yang di-Pertuan Agong may approve.”

Article 122 (1A) 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 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."

Hence, Soh and Ranbir said it was for that reason they were surprised when thePrime Minister's Office issued a statement of their appointments as additional judges on July 7.

Justice Raus would hold the CJ position for another three years while Justice Zulkefli for another two years after they had reached the age of 66 years and six months.

“Various parties have criticised or defended the extensions. Eminently learned persons have already discussed and argued at length various issues of constitutional interpretation...,” Soh and Ranbir said in the joint statement.

“We also note with concern that these appointments or extensions were not made via the Judicial Appointments Commission established under the Judicial Appointments Commission Act 2009,” they said.

Various questions have been raised including:

• Does Article 122(1A) of the Federal Constitution allow for the appointment of a person currently holding a high judicial office?
• Does Article 122(1A) of the Federal Constitution allow for additional judges of the Federal Court to be appointed for specific periods of time as opposed to being appointed for certain cases?
• Does Article 122(1A) of the Federal Constitution allow for the appointment of an additional judge of the Federal Court as CJ or CPA?
• Does Article 122(1A) of the Federal Constitution allow for a CJ to advise the Yang di-Pertuan Agong on the future appointment of an additional judge of the Federal Court, CJ or PCA, for periods after his own retirement?
• Can appointments pursuant to Article 122(1A) of the Federal Constitution be made when there are currently sufficient judges of the Federal Court and no large volume of important public interest cases requiring a larger panel of judges?

Soh and Ranbir pointed out that should any of the questions be answered in the negative, the appointments or extensions of Justice Raus and Justice Zulkefli would be unconstitutional and thus void.

“Furthermore, there are unanswered questions as to why other competent Federal Court judges have not been considered suitable to be appointed as CJ or CPA.

“Even if all the above questions are ultimately answered in the affirmative, the SLS and AAS wholly believe that public confidence in the judiciary must be of paramount importance,” the statement said.

“It is important not only that the judiciary acts independently, but that it is seen to do so.”

Both Soh and Ranbir said it was clear the timing and mode of Justice Raus and Justice Zulkefli's extensions gave rise to various issues about public perception and confidence in the judiciary.

“In view of the potential risk to public confidence in the judiciary, the SLS and AAS would like to urge their lordships to seriously consider these factors when deciding whether to accept the appointments or extensions accordingly,” they said.

Malaysian Bar president George Varghese had also described the appointment as blatantly unconstitutional and had called for an extraordinary general meeting to discuss the issue on Aug 3.

Former CJ Abdul Hamid Mohamad had written twice in his blog, voicing concerns over this, as was former Federal Court judge Gopal Sri Ram. -Mkini