Lawyer Ambiga Sreenevasan today told a seven-member Federal Court bench that the issue of Prime Minister Najib Abdul Razak agreeing to advise the appointment and tenure extension of two top judges is justiciable.
Citing the landmark decisions in the Semenyih Jaya and Indira Gandhi cases, Ambiga stipulated that when the decision of the executive is inconsistent with the Federal Constitution, the court is duty-bound to intervene.
Pointing to the press statement issued by the Prime Minister's Office on July 7, 2017, she said that allowing the extension of Chief Justice Md Raus Sharif and President of Court of Appeal Zulkefli Ahmad Makinudin's tenures by way of appointing them as additional judges would undermine the judiciary.
"We say after the judgment in (the cases of) Semenyih Jaya and Indira Gandhi that the prime minister’s advice to the Yang di-Pertuan Agong is not immune to scrutiny.
"The executive cannot be allowed to interfere with the independence of the judiciary. The acts in the (extension and appointments) is inconsistent with the constitution and the law. The court is duty-bound to intervene," she said.
In a press statement, Ambiga also said that the government intends to extend the retirement age of judges to 70 and this is a somewhat “backdoor approach” to justify the extension-cum-appointments.
Ambiga, who led the team of lawyers from the Malaysian Bar, also reiterated that the scheme of the Federal Constitution determined that the top four posts of the judiciary cannot be occupied by additional judges, as is the case with Justice Raus and Justice Zulkefli.
They, she added must be occupied by "tenured judges" who are those who have yet to attain the mandatory retirement age of 66 years and six months as specified in the constitution.
"If not, why is this specified in the Federal Constitution," she said.
She also questioned how a former chief justice could agree to the extension of Justice Raus and Justice Zulkefli as additional judges, a day before his retirement commenced.
‘Far-reaching consequences’
Ambiga reminded the bench, led by Federal Court judge Justice Hasan Lah, to take cognisance of the serious ramifications if such practices were allowed.
"We must uphold the appointment and the retirement age as stipulated in the Federal Constitution, otherwise it would become meaningless.
"The promotion of judges will be affected, it would open floodgates to one chief justice binding another chief justice. So where does it end?" she asked.
"It affects the independence of the judiciary as it affects the security of tenure. The consequences are far-reaching (if such practices are allowed to continue)," she said.
Ambiga noted that the bench faced a burdensome task in this case.
However, she stressed that the onus was on the judiciary to ensure compliance with the constitution, as it could affect the future of judges being appointed to the judiciary.
"Let justice be done though the heavens fall," she said.
[More to follow] -Mkini
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