Zaki’s remark on constitution could set bad precedent, says ex-judge

Gopal Sri Ram says calling rule on retirement age for judges 'archaic' is dangerous as other provisions could then be questioned, taking country down 'slippery slope'.

PETALING JAYA: A retired Federal Court judge said former chief justice Zaki Azmi has put forward a dangerous argument in claiming that a provision on mandatory retirement age for judges in the Federal Constitution is archaic.

Gopal Sri Ram said such reasoning could then be applied to other parts of the constitution.

“For example, some may say that the power in Parliament to amend the Constitution is also archaic.”

“A provision that the king must act on the advice of the prime minister on all matters with the exception of two is also archaic. The list may become never ending,” Sri Ram said.

He said this in response to Zaki’s commentary in the New Straits Times on Saturday that the relatively early retirement age of Malaysian judges at 66, with a possible extension of only six months was not in line with most Commonwealth countries.

The former top judge, who held office between 2009 and 2011, wrote the article in support of incumbent Chief Justice Raus Sharif and Court of Appeal president Zulkefli Ahmad Makinudin who were made additional judges to remain in their administrative posts.

Zaki said the government extended their tenures to see continuity and efficiency at the highest levels of the judiciary.

Both were appointed to their positions on April 1 but the government last month announced that Raus will remain in his position until Aug 3, 2020 while Zulkefli up to September 27, 2019.

Sri Ram said the fact that a chief justice or Court of Appeal president had only a few months to serve was a nonsensical argument to extend a person’s term.

“Unless, of course,there is a hidden agenda behind it,” he said.

Sri Ram said it was inevitable that in some cases a judge may only serve for a short period before he retires.

“Former chief justice Abdul Hamid Mohamad is a good example as he served for only 11 months from November 2007,” he said.

In India, he said there have been cases where the chief justice of the Supreme Court had served for a very short time.

“For example, judge Altamas Kabir was chief justice for only 9 months in 2005 while chief Justice Amal Kumar Sarkar served for only 3 months in 1966,” he said.

Sri Ram said the argument that Raus should be allowed time to serve to implement his policies was also wrong.

“The post of chief justice is not political. It is merely an administrative post,” he said.

Sri Ram also questioned if Zaki was suggesting that the other possible candidates have nothing to offer.

“Judges like Richard Malanjum, Zainun Ali, Hasan Lah, Zaharah Ibrahim, Balia Yusof Wahi and Aziah Ali are all rich in experience and can make valuable contributions to the institution,” he said.

Sri Ram cautioned that if one were to follow Zaki’s view, then “we are on a slippery slope”.

The ex-judge, who is now practising law, said he was perplexed by Zaki’s argument that the Judicial Appointments Commission (JAC) could be sidelined as provisions in the constitution superseded it.

“If that is the case, then why have the useless JAC Act? Why did Zaki when he was chief justice follow the provisions of the Act? Why did he not throw it to the winds and deal directly with the prime minister?” he asked.

He said it was better to disband the JAC, an unconstitutional body, instead of wasting taxpayers money.

“So dissolve the JAC and sack all its members. Is that not the answer if we follow Zaki’s argument?” he asked.

The JAC which came into force in 2009 is to, among others, vet candidates for promotions by a commission consisting of five sitting judges and four eminent persons.

Zaki had said the JAC was an extra constitutional body and could not replace the procedures and requirements of the constitution under Artile 122B.

This provision states the king appointed the four top judicial administrators on the advice of the prime minister after consulting the Conference of Rulers.

Sri Ram said the Malaysian public now has to wait until a court of competent jurisdiction was empaneled by someone who is not acting in conflict of interest to decide on the constitutionality of the appointments. - FMT