FORMER chief justice Arifin Zakaria’s decision to name Raus Sharif as his successor should be put under intense public scrutiny because it has set the stage for the biggest judicial crisis in 30 years, former attorney-general Abu Talib Othman said.

Abu Talib said Arifin had to explain why he nominated Raus, especially now that the latter had passed the mandatory retirement age of 66 years and six months.

“He should come out and tell the public because it is a controversy now. And it is a matter of great public importance. He should come out and explain.

“Is he of the opinion that all the other judges who have proven to be very competent and fiercely independent in the exercise of judicial functions are not competent to be the chief justice?” Abu Talib told The Malaysian Insight.

The former A-G, now 79, also questioned the manner in which Arifin stalled his announcement to right before he officially retired. 

A day before reaching the mandatory retirement age of 66 years and six months on March 31, Arifin made a recommendation to the Yang Di-Pertuan that he be replaced by Raus. 

Raus was sworn in as chief justice last Friday despite being past the mandatory retirement age, which lawyer groups, including the Malaysian Bar, have said was unconstitutional, and pledged to legally challenge it. 

Abu Talib, the country’s longest serving attorney-general, from 1980 to 1993, said while his personal view was that Raus’ term extension was “not in the spirit or intent” of the Constitution, its constitutionality can only be decided by the courts.

On whether Raus should have declined the position, Abu Talib took the stand that this was not Raus’ doing.

“In fairness to Raus, he was recommended by the chief justice to the Yang Di-Pertuan Agong. It is not his doing. It’s the doing of the outgoing chief justice.

“You cannot blame Raus because the recommendation for his appointment was made by the outgoing chief justice. 

“Furthermore, he has answered that question in a public interview. To him, it’s constitutional, unless it’s challenged,” he said.

The former Human Rights Commission of Malaysia (Suhakam) chairman supported the legal challenge by the Bar, adding that the court decision would ultimately determine the level of public confidence in the judiciary. 

Prior to his appointment as chief justice, Raus’ service had been extended for six months from February this year.

Arifin was appointed as chief justice, replacing Zaki Azmi, on September 12, 2011. 

Below are excerpts of the interview. 

Q: Can you comment on the legality of the term extension of Chief Justice Raus Sharif last week?

Abu Talib: It’s a legal issue. The lawyers said they are going to challenge it in court. So the question of validity is a legal issue for the court to determine. But my view is that, in the case of Raus, the exercise of that provision, his appointment is contrary to the intent and the spirit of the Constitution. 

Q: Do you expect the term extensions to be abused?

Abu Talib: You cannot prejudge that way. It would not be fair to say that “it would be further abused”.

The issue is, is this an abuse? Is this case an abuse? It’s yet to be contested, isn’t it? It is not so clear cut a case whether it is constitutionally valid or otherwise, there are various views. 

The Malaysian Bar’s case against the term extension is a challenging one. To use retired judges may be problematic because of the legal process involved. Could it involve the chief justice influencing who gets to sit on the panel to hear the constitutional case? 

His appointment is challenged. I do not think he would choose judges. The appointment of judges to set up a panel is vested in the chief justice, and if he is involved, it would be passed to the next senior judge. To say that he would abuse the process, it would not be fair. 

Q: What do you think of the Malaysian Bar’s legal case against the term extensions?

Abu Talib: The court will have the benefit of arguments from both sides. And I believe and I trust that they will give a decision consistent with the understanding of the Constitution, in particular with that amendment (that allows for additional judges).

My personal view is that his (Raus) appointment would appear to be contrary to the intention and the spirit of the amendment.  

Logically, he (former chief justice Arifin Zakaria) must have asked Raus whether he would accept or not, before he put up the recommendation. How do you expect him to turn down after the King appointed him? He must be convinced that it is constitutionally valid, otherwise, he would not have accepted, and he’s said so in one of his statements. In his view, the appointment is constitutionally valid. Unless it is challenged. It remains valid. 

The way I read it, in the circumstance of this case, it is contrary to the intention and spirit of the amendment. For a serving judge to be appointed additional judge upon retirement is not within the intention or the spirit of the amendment. 

There’s no problem, from Raus’ point of view. He’s been appointed, he’s been sworn in. So, he’s compliant as far as the government is concerned. His appointment is done properly and in accordance with the Constitution. Unless it is challenged, the appointment remains valid. So, the Bar Council said they want to challenge. Let’s wait for the outcome of the decision. 

Q: What do you think is the public perception of the judiciary, especially after the term extension?

Abu Talib: The Bar’s legal case is a matter of great public importance. It is a constitutional issue, let it go all the way up to the Federal Court. 

More important is to file the action first. No point commenting until legal action is taken. We’re all interested. Let’s hope that the Bar Council will really file an action challenging the validity of the appointment. I think it’s a matter of great public importance and also (to) enhance the integrity and public confidence in the judiciary if this matter of his (Raus) appointment is being properly and impartially decided by the court.

And the outcome will probably affect the confidence in the judiciary. How will people think if the chief justice is not constitutionally appointed? That’s why I said it’s a good thing that the Bar Council has taken the decision to challenge the appointment, we hope that it is carried out and done swiftly because he (Raus) is already appointed chief justice. He’s going to hear cases. He’s going to assume the administrative function of the chief justice very, very soon.  – August 11, 2017.