THE manner in which Chief Justice Raus Sharif’s term was extended could be replicated to appoint additional judges as well as successive chief justices, said former Malaysian Bar president Christopher Leong.

Leong said Raus’ appointment had set a precedence where former chief justices may also render advice to the Yang di-Pertuan Agong for such appointments, which would usurp and encroach upon the constitutional function of future chief justices.

Raus was sworn in as chief justice last Friday despite being past the mandatory retirement age of 66 years and six months, which lawyer groups, including the Malaysian Bar, have called unconstitutional and pledged to legally challenge.             

“I share that opinion,” Leong told The Malaysian Insight. 

Leong said the constitution does not provide for nor does it envisage that a chief justice may render advice under Article 122 (1A) of the constitution for appointments of additional judges to take effect after the expiry of that chief justice’s tenure. 

“That function and duty are for the chief justice to exercise, after taking account of the need or necessity for additional judges for the purpose of meeting the exigencies, requirements or gaps during his or her tenure. 

“It does not provide for nor envisage that a chief justice would or may assess such presumed need or necessity after his or her term in office. This must be for the presiding or serving chief justice thereafter,” Leong said. 

Raus’ term was extended by three years and his name was proposed to the King by former chief justice Arifin Zakaria a day before he retired on March 31. The announcement on the extensions was made by the Prime Minister’s Office on July 7.

Leong noted that Arifin’s proposal was intended to take effect even after the retirement of his successor. 

He said if this were acceptable, then in principle, a chief justice may render advice for the appointments of additional judges, and for such advice to be acted on, to take effect in the tenure of successive chief justices.

“This provision could then, in theory, be used by a chief justice to advise for the appointment of additional judges to take effect in successive periods for and during the tenure of the next two, three, four, five or more chief justices. 

“This not only stacks the Federal Court bench with additional judges well into the future but this obviously also usurps and encroaches upon the constitutional function of future chief justices,” Leong said. 

Raus was kept in judicial office by being appointed as an additional judge on July 17, purportedly pursuant to Article 122(1A) of the Federal Constitution.

“This cannot be the ambit, intent or purpose of Article 122(1A),” Leong said. 

“The unconstitutionality of the current appointments is therefore not a pedantic interpretation of the said constitutional provision. It is an interpretation and construction of the Constitution which is logical and purposive, as well as in harmony with Articles 122(1) and 122B,” he said.

Article 122(1) provides that the Federal Court shall consist of the chief justice of the Federal Court, the president of the Court of Appeal, chief judges of the High Courts and 11 other judges, and such additional judges as may be appointed under Article 122(1A).

Article 122(1A) allows the Yang di-Pertuan Agong acting on the advice of the Chief Justice of the Federal Court to appoint additional judges

Article 122B provides that the appointments of the chief justice, president of the Court of Appeal, chief judges of the High Courts, and other judges of the Federal Court, Court of Appeal and High Courts shall be made by the Yang di-Pertuan Agong, acting on the advice of the prime minister, after consulting the Conference of Rulers. When Arifin retired, Raus was appointed as chief justice on April 1.

Leong noted that the advice of the then chief justice Arifin was acted upon after the expiry of Raus’ tenure.

“Again, this is not envisaged by the Constitution. To hold otherwise would mean that in principle an advice by a retired chief justice may be acted upon six months, a year, two or more years after that chief justice’s retirement, and during the tenure or tenures of successive chief justices. 

“Such advice would be stale advice,” Leong said, adding that it was the role of the presiding chief justice, not his predecessor, to assess the need for additional judges.

Raus had told reporters on Saturday that while his term extension was unprecedented, it was constitutional. – August 8, 2017.