Something not quite right in the Palace of Justice

Shafee defends ‘additional judge’ route to keep CJ on the bench

Gerard Lourdesamy: How could former chief justice Arifin Zakaria advise the Agong to appoint the two judges – chief justice (CJ) Md Raus Sharif and president of Court of Appeal (PCA) Zulkefli Ahmad Makinudin – as additional judges of the Federal Court in March 2017 a few days before he himself retired, when these two judges were already judges of the Federal Court at that time and had not yet retired from the court?

Raus, who is the current CJ, obviously cannot advise the Agong to appoint himself as an additional judge of the Federal Court when his tenure expires and remain as CJ thereafter. With regard to the PCA, Raus can advise the Agong to appoint him as an additional judge of the Federal Court but not remain as PCA.

Additional judges of the Federal Court mean ordinary judges of the Federal Court and not as CJ, PCA, chief judge (Malaya) and chief judge (Sabah & Sarawak), who are all ex-officio members of the Federal Court.

Why is the constitution being distorted to appoint these two judges at the behest of the executive? Are there not other more senior and experienced judges to replace them?

Or is the government, in anticipation of GE14, trying to pack the judiciary with reliable and compliant judges who often rule in their favour and truncate the basic structure and fundamental freedoms in the constitution to protect the all-powerful interests of the executive as manifested in unfair laws passed by Parliament that are devoid of fairness and due process but defended by the judiciary as consonant with the constitution?

What is more shocking about this sordid affair is the eagerness of these two judges to remain in office as CJ and PCA rather than declining the offer after having regard to the sanctity of the constitution and the rule of law. Something is indeed rotten in the Palace of Justice in Putrajaya.

And why is Muhammad Shafee Abdullah, an Umno lawyer, commenting on this rather than the PM and the attorney-general (AG)? Does Umno now determine the composition of the bench in the superior courts?

The Bar Council is convening an extraordinary general meeting (EGM) to discuss this assault on the constitution and the judiciary, which, in my opinion, is as infamous as the 1988 sacking of the then Lord President Salleh Abbas.

These unconstitutional appointments need to be challenged in the courts and until then, the Bar should cease to recognise and cooperate with these personalities. Rightly or wrongly, the public perception at the moment is that the government is meddling with the judiciary to further its own political interests.

Res Ipsa: Shafie, with all due respect, not that you deserve any, I agree that Raus can be appointed as an additional judge of the Federal Court even if he was 100 years old.

This grey provision in the constitution is, without doubt, to cater for instances where appointment of additional senior judges at the apex court is necessitated to attend to the workload particularly in cases where there is an acute shortage of adequately qualified persons with relevant experience.

It certainly and definitely cannot be used to extend the tenure of a current and sitting CJ. What it all means is this – Raus can be extended, sorry reappointed, to the Federal Court at any point in time, but he has to sit as an ordinary Federal Court judge.

The position of CJ has to be held by the next eligible, qualified and most suitable judge from the current ranks who has been appointed in accordance with the constitution. Does that not make sense?

Léon Moch: Article 122(1A) of the constitution certainly does not permit retired CJs to nominate additional judges. The question is whether the clause covers a situation of nomination in advance for a time when the nominating CJ is no longer CJ.

Even if it does, at the time the former CJ made the nomination, the current CJ was already a member of the Federal Court. This is because former CJ Arifin became CJ the same day current CJ Raus became president of the Court of Appeal, which makes him part of the Federal Court [Article 122(1)].

If he were already a judge of the Federal Court, how is it possible for him to become an additional judge of the Federal Court at any material time during the former CJ’s tenure?

If a football team has 10 members, appointing any of the existing members as an additional member of the team certainly does not make it grow to 11, i.e., there is no additional member for intents and purposes.

Gaji Buta: “He (Arifin) may have been influenced by the fact that the two top judges after him would have only four months and six months respectively to hold the two top posts. The former CJ must have felt bad about this ‘flash in the pan’ tenure as compared to his, which was more than six years,” Shafie said.

So instead of appointing younger judges who can serve longer, the path chosen was to cause a constitutional crisis.

Fairman: It seems Shafee is the chief promoter of getting Raus retained as CJ for another three years. It will be interesting to see which lawyer will be leading the government should a suit be filed on the legality of Raus and Zulkefli’s appointment.

Shafee, you better read Abdul Hamid Mohamad’s opinion before making further comments. Raus cannot be CJ beyond his retirement age. He can be appointed additional judge after retirement and that by a new CJ.

JBond: The constitution has been raped and screwed so many times, it has no longer any value. The very people who are supposed to uphold it are the ones who abuse it.

RR: Please don’t make a mockery of the judiciary again. We know that in today’s age and longevity, judges could work till 70. For this to take shape, please amend the Federal Constitution first. Even the opposition will vote for such amendment.

But don’t use the backdoor as suggested by Shafee and destroy the little trust the people have in the judiciary. I am sure there are competent judges within its present brotherhood to fill the vacancy of CJ and Court of Appeal president.

Vijay47: Shafee, I am surprised to note that you have not, unlike Elvis, left the building, not that I particularly care one way or the other. A few doubts to sort out.

First, your comments about the motives behind the recent judicial shenanigans seem to be speculative – “must have”, “may have been” – considering your familiarity with the bench, one would have thought you would have been more categorical. But I will let it slide.

Second, is this the shady dubious manner in which the appointment of the chief justice of any nation worth its salt should be accomplished? We would have thought that such elevation to the post of chief justice would be carried out openly and with great fanfare, not done surreptitiously in the dead of night.

Third, I do believe you owe the Malaysian public something – your explanation of the RM9.5 million gratefully given to you by a public officer who is not a public officer. We are still waiting.

The above is a selection of comments posted by Malaysiakini subscribers. Only paying subscribers can post comments. Over the past one year, Malaysiakinians have posted over 100,000 comments. Join the Malaysiakini community and help set the news agenda. Subscribe now.

These comments are compiled to reflect the views of Malaysiakini subscribers on matters of public interest. Malaysiakini does not intend to represent these views as fact.