Yesterday, Pakatan Harapan leaders led by Tun Dr. Mahathir Mohamad (Bersatu), Datuk Seri Dr. Wan Azizah Wan Ismail (PKR), Mujahid Yusuf Rawa (AMANAH) and myself (DAP) petitioned the Yang Di Pertuan Agong Sultan Muhammad V to refer the government’s decision to extend the tenures of the two top judicial posts, the Chief Justice and the Court of Appeal President, to the Federal Court.
Article 130 of the Malaysian Constitution on “Advisory jurisdiction of Federal Court” states:
“130. The Yang di-Pertuan Agong may refer to the Federal Court for its opinion any question as to the effect of any provision of this Constitution which has arisen or appears to him likely to arise, and the Federal Court shall pronounce in open court its opinion on any question so referred to it.”
The tenure of Tan Sri Raus Sharif as Chief Justice ends today while tenure of Tan Sri Zulkefli Ahmad Makinudin as Court of Appeal President ends on Sept. 27.
Tomorrow may therefore see the country plunged into a new constitutional crisis.
As former Attorney-General and former Suhakam Chairman Tan Sri Abu Talib Othman said in an interview last week, the country cannot afford another judicial crisis.
Today, Abu Talib said the extension of Raus as Chief Justice and Zulkefli as Court of Appeal President “are contrary to the intent and spirit of the amendment to Article 122(1A) which allows for appointing additional judges”.
Former Chief Justice, Tun Abdul Hamid Mohamad said the extension of the tenures of Chief Justice and Court of Appeal President would compromise independence of the judiciary and create uncertainty among other judges regarding their career and he suggested that both Raus and Zulkefli should decline the appointments.
The extension of the tenures of Raus and Zulkefli are not only unconstitutional, but would affect the promotional opportunities and prospects of at least eight Federal Court judges, including three women.
But the most glaring injustice of the unconstitutional extensions will be the denial of the opportunity of Tan Sri Richard Malanjum as the first Chief Judge of Sabah and Sarawak to be appointed as Chief Justice of Malaysia.
Malanjum is in fact the most senior Federal Court judge in the country, more senior than both Raus and Zulkefli.
Malanjum is the first Sabah bumiputra to be appointed a High Court judge, and the first Sabahan to be elevated as a Judge of the Court of Appeal and Federal Court , the apex court of the country, in 2005 at the age of 52.
Malaysia is celebrating the 60th National Day anniversary marking the attainment of Merdeka on 31st August 1957 and the 54th Malaysia Day anniversary marking the formation of Malaysia on 16th September 1963.
It would be a great and important factor contributing to the closer unity and cohesion of the Malaysian Federation if a Sabahan or Sarawakian who is Chief Judge of the High Court of Sabah and Sarawak could be elevated as Chief Justice of Malaysia in the sixth decade of Malaysian federation.
If Raus and Zulkefli are not prepared to decline the unconstitutional extension of tenure of the two top judicial posts, they should at least do two things:
• Firstly, announce that they will await the Federal Court decision on the constitutionality or otherwise of the extension of the tenures as Chief Justice and Court of Appeal President before taking up their new extended appointments; and
• Secondly, announce that both of them will recuse from all court cases where Datuk Seri Najib Razak is involved as a party, whether as Prime Minister, UMNO President or in his private personal capacity, during their extended tenures as Chief Justice and Court of Appeal President respectively.
(Media Conference Statement in Parliament on Thursday, 3rd August 2017 at 12 noon)