Sabah, S’wak bodies question appointment of top judges

KOTA KINABALU: The Sabah Law Society (SLS) and the Advocates Association of Sarawak (AAS) have also questioned the appointment of Tan Sri Dato’ Seri Md Raus bin Sharif as the Chief Justice (CJ) of the Federal Court and Tan Sri Dato’ Seri Zulkefli bin Ahmad Makinudin as president of the Court of Appeal.

They pointed out that Article 125(1) of the Federal Constitution states 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.”

“It is for this reason that many were surprised when, on 7th July 2017, the Prime Minister’s Office issued a press statement that Tan Sri Dato’ Seri Md Raus bin Sharif and Tan Sri Dato’ Seri Zulkefli bin Ahmad Makinudin would be appointed as additional judges of the Federal Court for a period of three and two years respectively after they had reached the age of 66 years and six months, and would continue to hold the positions of Chief Justice (CJ) of the Federal Court and President of the Court of Appeal (PCA) respectively,” SLS president Brenndon Keith Soh and AAS president Ranbir Singh Sangla said in a joint statement yesterday.

The press statement relied on Article 122(1A) of the Federal Constitution which states:

“Notwithstanding anything in this Constitution contained, 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:

Provided that no such additional judge shall be ineligible to hold office by reason of having attained the age of sixty-six years.”

As expected, objections were raised, and various parties have leapt to either criticise or defend the appointments/extensions. Eminently learned persons have already discussed and argued at length various issues of constitutional interpretation arising out of the same. The various questions that have been raised include:

Does Article 122(1A) of the Federal Constitution allow for the appointment of persons presently holding high judicial office?

Does Article 122(1A) of the Federal Constitution allow for additional judges of the Federal Court to be appointed for specific periods of time as opposed to being appointed for certain cases?

Does Article 122(1A) of the Federal Constitution allow for the appointment of an additional judge of the Federal Court as CJ or PCA?

Does Article 122(1A) of the Federal Constitution allow for a CJ to advise the Yang diPertuan Agong on the future appointment of an additional judge of the Federal Court, CJ or PCA, i.e. for periods after his own retirement?

Can appointments pursuant to Article 122(1A) of the Federal Constitution be made when there are presently sufficient judges of the Federal Court, and no large volume of important public interest cases requiring a larger panel of judges?

According to Brenndon and Ranbir, should any one of the above questions be answered in the negative, the appointments/extensions would be unconstitutional and thus void.

Both the SLS and AAS further note with concern that these appointments/extensions were not made via the Judicial Appointments Commission established under the Judicial Appointments Commission Act 2009. Furthermore, there are unanswered questions as to why other competent Federal Court Judges have not been considered suitable to be appointed as CJ or PCA.

Even if all the above questions are ultimately answered in the affirmative, the SLS and AAS wholly believe that the public confidence in the judiciary must be of paramount importance.

It is illuminating to refer to the United Kingdom’s Select Committee on the Constitution - Judicial Appointments commissioned by the House of Lords published on 28.03.2012. On the issue of constitutional principles, the Select Committee had this to say:

“It is important not only that the judiciary act independently, but that they are seen to do so. This principle also extends to the appointments process. Lord Justice Toulson, Vice-Chairman of the JAC, noted that prior to the enactment of the [Constitutional Reform Act 2005] there was widespread public concern that judges were being appointed through cronyism and secret soundings. Nothing, really, could disabuse the public of that.” The establishment of the JAC was intended to put an end to such concerns. By operating in an open and transparent manner - for example, by advertising vacancies, specifying the criteria for appointment and publishing diversity statistics - the existence of an independent appointments commission is aimed at helping to ensure that no suspicion of political patronage remains.”

The SLS and AAS harbour no doubts as to the sterling characters and capability of Md Raus and Zulkefli, as well as the constitutional powers bestowed upon His Majesty the Yang diPertuan Agong pursuant to Article 122(1A).

However, it is clear that the timing and mode of the appointments/extensions certainly gives rise to the various issues raised above in this statement and specifically on the public perception and confidence in the judiciary. In view of the potential risk to the public confidence in the judiciary, the SLS and AAS would urge their Lordships to seriously consider these factors in mind when deciding whether to accept the appointments/extensions accordingly.