THE prime minister extending the contracts of Chief Justice Md Raus Sharif and Court of Appeal president Zulkefli Ahmad Makinudin has broken five constitutional provisions, the Malaysia Bar says.

Bar Council president George Varughese listed five provisions that were violated in extending the two judges services, calling their appointments as unprecedented, “troubling” and “blatantly unconstitutional” in a statement today:

Strike 1

It is unambiguously stipulated in Article 125(1) of the Federal Constitution that “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”.

A limited exception to this prescribed age limit is in respect of an appointment as an “additional judge of the Federal Court” under Article 122(1A) of the Federal Constitution.

This provides that “…the Yang di-Pertuan Agong acting on the advice of the Chief Justice 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”.

The advice of the former chief justice on March 30, 2017, prior to his retirement, was considered and accepted by the Yang di-Pertuan Agong on the advice of the Prime Minister and after consultation with the Conference of Rulers convened on May 24-25, 2017, almost two months after the retirement of the former chief justice.

Article 122(1A) does not permit the former chief justice to advise the Yang di-Pertuan Agong in respect of appointments of additional judges that are to take effect after he has ceased to be the chief justice.

Otherwise, as a matter of principle, a chief justice may, before his retirement, be constitutionally placed to advise on the appointment of additional judges that would take effect when he is no longer the chief justice, and even long after.

This oversteps the chief justice’s constitutional role as provided in Article 122(1A), and is thus clearly in breach of the Federal Constitution.

Strike 2

It would also encroach upon and usurp the duties and powers of the current chief justice, as the provision in Article 122(1A) should only be exercised, if at all, by the current chief justice, and not the former chief justice.

Strike 3

Article 122(1A) provides for the appointment of additional judges of the Federal Court. It clearly does not provide for the additional judges to be appointed to continue to be the chief justice and the president of the Court of Appeal pursuant to Article 122B(1).

Strike 4

Article 122(1) of the Federal Constitution stipulates that “the Federal Court shall consist of a president of the Court (to be styled “the Chief Justice of the Federal Court”), of the president of the Court of Appeal, of the chief judges of the High Courts and, until the Yang di-Pertuan Agong by order otherwise provides, of 11 other judges and such additional judges as may be appointed pursuant to Clause (1A)” [emphasis added].

This wording unequivocally indicates that the chief justice and any additional judge must be two distinct persons; they cannot be one and the same person. The same principle applies in respect of the president of the Court of Appeal.

Strike 5

Furthermore, the appointment of additional judges is questionable, since there would be vacancies in the Federal Court upon the retirement of the incumbents.

Article 122(1) clearly envisions that any additional judge would be supplemental to a full Bench of the Federal Court.

It is disturbing that additional judges have been appointed without first filling the vacancies that would arise.

The men were appointed on Saturday as additional judges to keep them in judicial office beyond the age limit of 66 years and 6 months, as prescribed in the Federal Constitution.

The appointments are purportedly pursuant to Article 122(1A) of the Federal Constitution, on the advice of the then-Chief Justice Arifin Zakaria on March 30, 2017, a day before his retirement. – July 9, 2017.