This article first appeared in The Edge Financial Daily on July 10, 2017

KUALA LUMPUR: The Malaysian Bar has described as “blatantly unconstitutional” the appointments of Chief Justice Tan Sri Md Raus Sharif and Court of Appeal President Tan Sri Zulkefli Ahmad Makinudin as additional judges.

It said the extension of their judicial office beyond 66 years and six months as prescribed in the Federal Constitution was troubling.

“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 sixty-six years or such later time, not being later than six months after he attains that age, as the Yang di-Pertuan Agong may approve,’” Malaysian Bar president George Varughese said in a statement yesterday.

Although a limited exception exists to this prescribed age limit for an appointment as an additional judge of the Federal Court under Article 122(1A) of the Federal Constitution, the statement said, the manner in which the recently announced appointments were undertaken was questionable. 

Article 122(1A) provides that the Yang di-Pertuan Agong, acting on the advice of the chief justice, may appoint any person who has held high judicial office in Malaysia to be an additional judge of the Federal Court for a specified period, the statement said.

The appointments were based on Article 122(1A) of the Federal Constitution, on the advice of the then chief justice, Tun Arifin Zakaria, on March 30, a day before his retirement, Varughese noted.

The advice of the former chief justice on March 30 was accepted by the Yang di-Pertuan Agong on the advice of the prime minister and after consultation with the Conference of Rulers on May 24 and 25, almost two months after the retirement of the former chief justice, Varughese pointed out. 

“The Malaysian Bar’s position is that, firstly, 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,” said the Bar president.  

“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,” said Varughese. 

Secondly, 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, he said. 

“The manner in which the recently announced appointments was undertaken is questionable, and lends to the inference that there is a dearth of suitable candidates among the current members of the Federal Court, which the Malaysian Bar believes is not true,” said Varughese. 

“This perception will result in a widespread and severe erosion of public confidence in the judiciary and its independence, and raise a question in the public mind as to why the appointments are being made at all, and in this manner,” he said.

News sites reported that the Bar Council decided at its monthly meeting on Saturday to convene an extraordinary general meeting to discuss the appointments.