Malaysia's legal fraternity is divided over the government's surprise reappointments of the two most senior judges beyond their retirement ages, with the Bar Council calling the move "unconstitutional" and will cause "widespread and severe erosion of public confidence in the judiciary and its independence".
The Prime Minister's Office (PMO) said last Friday that Chief Justice Md Raus Sharif and Court of Appeal president Zulkefli Ahmad Makinudin are being appointed "additional judges" to the Federal Court, allowing them to serve beyond the constitutionally stipulated retirement age of 66 years and six months.
Tan Sri Raus and Tan Sri Zulkefli were due to retire in August and September, respectively.
The PMO statement said that, as additional judges, both men would now retain their top posts.
It said the reappointments were made on the advice of former chief justice Arifin Zakaria in March this year, prior to his retirement.
The Malaysian King, the PMO said, agreed in May with the two appointments after receiving advice from Prime Minister Najib Razak and discussing it with the Conference of Rulers.
The unexpected legal moves received a strong backlash from the opposition and the legal fraternity, with former chief justice Abdul Hamid Mohamad calling on Mr Raus to reject the extension of his tenure as "the honourable way" out of the controversy.
For and against
The arguments for and against the reappointments.
THE PRIME MINISTER’S OFFICE, LAST FRIDAY
“The appointments of Tan Sri Md Raus Sharif and Tan Sri Zulkefli Ahmad Makinudin as additional judges in the Federal Court after each of them reaches the age of 66 years and six months are on the respectful suggestion and advice of the Chief Justice... Tun Arifin Zakaria to His Majesty, the Yang di- Pertuan Agong (King), on March 30, 2017 before (Arifin) retired.” The PMO said, with their appointments as additional judges, Mr Raus could remain as chief Justice for three years from Aug 4 and Mr Zulkefli could continue as president of the Court of Appeal for two years from Sept 28.
GEORGE VARUGHESE, PRESIDENT OF MALAYSIA’S BAR COUNCIL, ON SUNDAY
“(The Constitution) 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.”
Mr Raus became chief justice only on April 1 this year, after Tan Sri Arifin retired, and Mr Zulkefli was promoted as the Appeals Court president on the same day.
It is not clear why the government wants to extend the tenure of the two justices. But the backlash has raised questions about the government's timing, as Datuk Seri Najib is contemplating when to call the general election.
Nationwide polls are not due until August next year, but he is expected to call them by November.
The Malaysian Bar said that while the government is allowed to appoint additional judges, this can be done only by the "current" Chief Justice, but not by a chief judge who had retired.
Tan Sri Arifin retired in March, while the King agreed to the appointments in May.
The government and senior lawyers, in their arguments for and against the issue, quoted various articles of the Constitution.
Under Article 122 (1A), the King, acting on advice of the Chief Justice, may appoint an "additional judge" in the Federal Court. This was stated by the PMO in the appointments of both individuals.
But in separate statements, the Malaysian Bar and former chief judge Abdul Hamid disputed that making them additional judges would automatically allow Mr Raus and Mr Zulkefli to extend their current contracts.
"So, it is an appointment, not an extension. In other words, the term of office of a chief justice cannot be extended pursuant to this clause," said Tun Abdul Hamid.
But senior lawyer Muhammad Shafee Abdullah defended the appointments, drawing on previous precedents to address the "shortage of top judicial brains in the apex court". The Malaysian Bar and other former judges disputed Tan Sri Shafee's remarks, arguing that there are capable judges to helm the judiciary.
The Malaysian Bar has said it will convene an extraordinary general meeting to discuss the issue. Both Mr Raus and Mr Zulkefli could not be reached for comment yesterday.