THERE are echoes of the 1988 judicial crisis in the term extensions for the chief justice and Court of Appeal president, say lawyers, who also believe any legal challenge to overturn Prime Minister Najib Razak’s decision has little chance of success.

However, they are looking to the Bar Council to make a stand at the coming extraordinary general meeting (EGM) and are hopeful the public will be more concerned about the implications of these judicial developments.

Any legal challenge would not likely bear fruit because constitutional provisions are weighted in favour of the executive, lawyers said.

“They don’t have a choice. The Bar has a duty to ensure that our justice system is as good as possible and that the rule of law and the Constitution are respected,” said Azmi Sharom, associate professor of law at Universiti Malaya.

The Malaysian Bar will hold an EGM next month after the Bar Council questioned the government’s move last Friday to extend the services of Chief Justice Md Raus Sharif and Court of Appeal President Zulkefli Ahmad Makinudin. They will serve an extra three and two years respectively.

Both men were appointed as additional judges to keep them in judicial office beyond the purported age limit of 66 years and 6 months, pursuant to Article 122(1A) of the Federal Constitution.

Bar President George Varughese had called their appointments, recommended by Najib, as unprecedented, “troubling” and “blatantly unconstitutional”.

In a statement on Sunday, Varughese pointed to five violations of the constitution in the extension of the two judges.

In ensuring the independence of the judiciary, lawyers can no longer afford to be mindful of pushing too hard despite fears of making enemies with the top judges.

“Of course, it’s not easy for individual lawyers to speak up because this may affect their relationship with the judiciary,” said Eric Paulsen, executive director of Lawyers for Liberty.

“But all lawyers and judges know the importance of separation of power, that the independence of the judiciary should be defended at all cost, so that it does not lose public confidence.”

The Bar is in the process of drafting the resolutions to be sent to its 16,500 members in the peninsula by this week.

The EGM will likely seek a mandate from its members before mounting any legal challenge.

“Justice is not a cloistered virtue. The judiciary can only command public confidence and respect through its conduct, in and out of court, in judgments to give the appearance of impartiality, independence and integrity,” Paulsen said.

“We expect judges to be fearless in upholding and defending the Constitution as they have sworn to do so when they took the judicial oath,” he added.

“Therefore, we expect judges who hear challenges on the legality of the appointments (of Raus and Zulkefli) to be fair and impartial and to set aside any personal interests they may have, and decide according to the law.”

Last week’s appointments have some parallels to the 1988 judicial crisis when Lord President of the Supreme Court Salleh Abbas was removed from office and five other Supreme Court judges were suspended.

Yang di-Pertuan Agong ordered the suspensions, on former prime minister Dr Mahathir Mohamad’s advice.

The Bar Council then questioned the sacking and criticised the role of former Lord President Hamid Omar in the matter. Hamid was a Supreme Court judge when he chaired a six-member tribunal  which ultimately sacked Salleh.

In the same year, the Federal Constitution was amended to remove the term “judicial power” from Article 121(1) of the Federal Constitution, which suborned the judiciary to Parliament.

The Bar Council has repeatedly called for a review of the 1988 judicial crisis after Dr Mahathir admitted that he asked a former Salleh to resign or face dismissal.

This time round, lawyers would have to present a united front in mounting any legal challenge, said Andrew Khoo, co-chairman of the Bar Council human rights committee.

“Any challenge would be based on questions of law and principle, and not on personality,” said Khoo.

“Every action has consequences, but the role of the Malaysian Bar is to uphold the cause of justice regardless of its own interests or that of its members. There must be no fear or favour.”

Khoo said a variety of legal provisions could be used to argue against the appointments.

“The theoretical conflict is that arguably any judge could be nominated to be chief justice. Ultimately, though, in any legal challenge, judges would be asked to honour their oath of office, to uphold the Federal Constitution,” he said.

Another hope, the lawyers said, would be for the public to voice their dissatisfaction over the erosion of the separation of the three branches of government: the executive, the judiciary and the legislative.

However, Azmi expects the public to remain oblivious as to the implications of another constitutional crisis.

“It’s a fairly complicated issue, so unless explained very simply, most people won’t get it. Besides our country is flooded with huge governance issues and corruption. This, unfortunately, will seem relatively minor to many,” he said.

Meanwhile, the Malaysian Bar constitutional law committee co-chairman Surendra Ananth declined to comment on the Bar’s plans or its chances of success should it file a legal challenge.

However, he said the independence of the judiciary is “a fixed-star in any democratic society”.

“The judiciary draws its strength from public confidence. That confidence is arguably at an all-time low,” he said.  – July 11, 2017.