The Appointments of the Chief Justice and the President of the Court of Appeal as Additional Judges are Unconstitutional and Unprecedented — Malaysian Bar


Source: The Malaysian Bar


The appointments of YAA Tan Sri Dato’ Seri Md Raus Sharif, Chief Justice of the Federal Court of Malaysia (“current Chief Justice”) and YAA Tan Sri Dato’ Seri Zulkefli Ahmad Makinudin, President of the Court of Appeal, as additional judges have the effect of keeping them in judicial office beyond the age limit of 66 years and 6 months prescribed in the Federal Constitution, and is troubling.

The appointments are purportedly pursuant to Article 122(1A) of the Federal Constitution, on the advice of the then-Chief Justice, YAA Tun Dato’ Seri Arifin Zakaria (“former Chief Justice”) on 30 March 2017, a day before his retirement.

The Malaysian Bar is of the considered view that these appointments are blatantly unconstitutional.

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”.

A limited exception to this prescribed age limit is in respect of an appointment as an “additional judge of the Federal Court” under Article 122(1A) of the Federal Constitution.  Article 122(1A) provides that “…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”.

The advice of the former Chief Justice on 30 March 2017, prior to his retirement, was considered and accepted by the Yang di-Pertuan Agong on the advice of the Prime Minister and after consultation with the Conference of Rulers convened on 24 and 25 May 2017, almost two months after the retirement of the former Chief Justice.

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.   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.

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.

Thirdly, Article 122(1A) 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 pursuant to Article 122B(1).

Fourthly, Article 122(1) of the Federal Constitution stipulates that “the Federal Court shall consist of a president of the Court (to be styled “the Chief Justice of the Federal Court”), of the President of the Court of Appeal, of the Chief Judges of the High Courts and, until the Yang di-Pertuan Agong by order otherwise provides, of eleven other judges and such additional judges as may be appointed pursuant to Clause (1A)” [emphasis added].  This wording unequivocally indicates that the Chief Justice and any additional judge must be two distinct persons; they cannot be one and the same person.  The same principle applies in respect of the President of the Court of Appeal.

Furthermore, the appointment of additional judges is questionable, since there would be vacancies in the Federal Court upon the retirement of the incumbents.  Article 122(1) clearly envisions that any additional judge would be supplemental to a full Bench of the Federal Court.  It is disturbing that additional judges have been appointed without first filling the vacancies that would arise.

For the reasons above, the appointments of the incumbents as additional judges and to continue as the Chief Justice and the President of the Court of Appeal are unconstitutional and unprecedented.

The Malaysian Bar does not question the abilities, capabilities or suitability of the current Chief Justice and the President of the Court of Appeal, and had welcomed their respective appointments on 1 April 2017.  Regardless of whether they are the most suitable persons for the positions, their tenures will come to an end on 3 August 2017 and 27 September 2017, respectively.  In appointing their successors, the scheme stipulated in the Federal Constitution must be abided by.  To do otherwise would potentially allow them to remain in judicial office indefinitely.

The legality and integrity of the appointment of a Chief Justice and a President of the Court of Appeal must always be beyond reproach.  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.  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.

The appointments also do an undeserved disservice to sitting Federal Court judges and other judges, who are being deprived of the opportunity for promotion and, in particular, Federal Court judges who are due to retire before the expiry of the appointments.

Recalling the constitutional crisis that had adversely affected the Judiciary in 1988, which caused repercussions that resounded for decades thereafter, Malaysia — and the Judiciary in particular — can ill afford another constitutional debacle that would negatively impact upon the Judiciary.

When the current Chief Justice and the President of the Court of Appeal took their oaths of judicial office, they pledged to uphold the Federal Constitution.  They should now fulfil their vows by declining the appointments.  It would be deeply regrettable and unfair to unnecessarily embroil Their Lordships in controversy at this stage of their careers.

George Varughese
Malaysian Bar