Three questions whether the country will have an illegal and unconstitutional Chief Justice swirling in the minds of judges, lawyers, legislators and informed Malaysians
Three questions whether the country will have an illegal and unconstitutional Chief Justice at the pinnacle of the judiciary is swirling in the minds of judges, lawyers, legislators and informed Malaysians for some months.
They are:
• Will the country have an illegal and unconstitutional Chief Justice after August 3, 2017?
• Will a new constitutional crisis blow up in the face of Parliament during its three week July/August meeting from 24th July to 10th August with the appointment of an illegal and unconstitutional Chief Justice?
• Will the country be celebrating the 60th National Day anniversary and the1957 Merdeka Constitution with a most serious assault on the sanctity and integrity of the fundamental provisions in the 1957 Merdeka Constitution on the doctrine of separation of ;powers and the independence of the judiciary?
Many jurists, including a former Chief Justice, a former Federal Court judge and the Malaysian Bar have expressed their concern at the possibility of the appointment of an illegal and unconstitutional Chief Justice but the Prime Minister and the Attorney-General appear to be unmoved by their arguments and reasons.
Former Chief Justice Tun Abdul Hamid Mohamad has publicly argued that a further extension to the tenure of Chief Justice Md Raus Sharif after the 66 years and six months would be unconstitutional.
Hamid wrote in his blog that he was not writing because he does not like Justice Raus, but was merely highlighting his point of view on the constitutionality of prolonging Justice Raus tenure with a month to go into his six-month extension on August 3.
Hamid, who was Chief Justice from November 2007 to October 2008, argued that an extension beyond the 66-year and six-month tenure for Justice Raus may compromise the independence of the judiciary.
He recommended that Justice Raus should decline the further extension even if the government had offered him a renewed appointment as Chief Justice after August 3.
Other jurists have expressed similar views and concerns.
Former Federal Court judge Tan Sri Gopal Sri Ram said there are capable judges to take over the position of Chief Justice should Justice Raus retire as the country’s top judicial officer.
He warned that if the government defied the constitutional and legal restraints and proceeds to extend the tenure of the chief justice, then it would “sow the wind but reap the whirlwind”.
He explained: “First, it will undermine the judiciary and denude it of the respect such as which exists today.
“Second, and more importantly, the extension may be challenged causing embarrassment to the present incumbent. That must be avoided at all costs.”
The Malaysian Bar president George Varughese has also expressed concern that the extension of the tenure of the top judge of the country is not only unconstitutional but unfairly embroils Chief Justice Raus in a controversy.
George said the extension would also put in jeopardy the chief justice’s standing, and gives the impression there is no one else in the judiciary who could take up the position.
Chief Justice Raus should be reminded that last April, when he took his oath as Chief Justice, he pledged that he would carry out the duties of the office to the best of his abilities as required by the Federal Constitution.
The Prime Minister, the Attorney-General and the Chief Justice cannot continue to prolong their collective silence on this substantive and sensitive constitutional and one of them must speak up to quell the swirling questions of concern in the minds of judges, lawyers, legislators and informed Malaysians about the independence and integrity of the judiciary after August 3.