Will today, August 4, 2017, go down in Malaysian history as one of the nation’s black days of infamy when the country fell into the pit of a major constitutional crisis testing the Merdeka Constitution 1957 and Malaysia Agreement 1963 as to whether the nation can remain true to the basic principles of nation-building spelt out in the Merdeka Proclamation 1957 and Malaysia Proclamation 1963?
Two days ago, 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 ended yesterday while the tenure of Tan Sri Zulkefli Ahmad Makinudin as Court of Appeal President ends on Sept. 27.
Yesterday, the Malaysian Bar in an extraordinary general meeting in Kuala Lumpur on the “blatantly unconstitutional” extension of the tenures of Chief Justice and Court of Appeal President decided to mount a legal challenge against the extension of the appointment of the two top judicial posts.
The Malaysian Bar EGM also decided to boycott Raus as Chief Justice and Zulkefli as Court of Appeal President from their social functions, and members of the Bar are also encouraged to decline social invitations from them.
The country is now set on an ugly constitutional crisis.
It is most tragic that we do not seem to be able to learn from the mistakes of the past, and as the former Attorney-General and former Suhakam Chairman Tan Sri Abu Talib Othman warned in an interview last week, the country cannot afford another judicial crisis.
One man can save the country although we are at the precipice of a major and ugly constitutional crisis – Raus himself.
If Raus is not prepared to decline the unconstitutional extension of tenure of Chief Justice, he should at least do two things:
• Firstly, announce that the 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 the new extended appointment; and
• Secondly, announce that he will recuse himself 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 his extended tenure as Chief Justice.
Until the Federal Court has pronounced on the constitutionality of the extension of his tenure as Chief Justice, Raus should be not allow himself to be sworn in as Chief Justice for another three years.
