JULY 9 — Allow me to express my opinion on the recent appointments of Tan Sri Dato' Seri Md Raus bin Sharif and Tan Sri Dato' Seri Zulkefli bin Ahmad Makinudin as additional judges and their extensions as CJ and PCA.
Introduction
Much has been said about the appointments of YAA Tan Sri Dato’ Seri Md Raus bin Sharif and YAA Tan Sri Dato’ Seri Zulkefli bin Ahmad Makinudin as additional judges and their subsequent extensions as Chief Justice (“CJ”) and President of the Court of Appeal (“PCA”) respectively. Most, if not all, who have expressed their opinion are of the view that both the appointment and extension are unconstitutional. This article intends to provide a neutral view on the subject, highlighting both sides of the argument.
The issues are simply this: In what circumstances can additional judges be appointed, and, can such additional judges hold the positions of CJ and PCA. The analysis must also be understood in reference to the facts in the present scenario, where the said appointments and extensions were made at a point in time when the said judges were, and still are, judges.
Arguments in support of the appointments and extensions
The discussion necessarily starts with Article 122(1A) of the Federal Constitution (“FC”), which provides:
“(1A) 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.”
The issue of age does not arise. An additional judge can be above the age of 66. Can an additional judge be appointed for a certain period of time as opposed to being appointed for certain cases? The provision does not prohibit this. In fact, this was done for the appointment of Tan Sri Jeffrey Tan as an additional judge for a period of two years. Can such additional judges then be made CJ or PCA? Article 122B(1) provides:
“(1) The Chief Justice of the Federal Court, the President of the Court of Appeal and the Chief Judges of the High Courts and (subject to Article 122c) the other judges of the Federal Court, of the Court of Appeal and of the High Courts shall be appointed by the Yang di-Pertuan Agong, acting on the advice of the Prime Minister, after consulting the Conference of Rulers.”
I note that some take the view that an additional judge cannot be made a CJ or PCA. However, nothing in the said provision says that an additional judge cannot be appointed as the CJ or PCA. There is no express prohibition. Such reading of the Federal Constitution is supported by the majority decision of the Federal Court in Badan Peguam Malaysia v Kerajaan Malaysia [2008] 2 MLJ 285, where the Malaysian Bar challenged the constitutionality of the appointment of a judge, Dr Badariah bte Sahamid (now Judge of the Court of Appeal). The issue in that case was whether the said appointment complied with Article 123(b) of the Federal Constitution, which required a candidate to be “an advocate” of the High Court for 10 years preceding the appointment. The Malaysian Bar took the position that the said provision must be read to mean an advocate having practiced for 10 years. The majority took the position that, despite the reiteration of the principle that the Federal Constitution was to be read generously, the relevant constitutional provision (Article 123) was, in effect, to be read literally so as to avoid reading words into the provision.
Can the appointments be made prospectively? There is scarce legal discussion on this. Some commonwealth countries take the position that public office appointments can be made prospectively even before the vacancy of such office. However, this is always subject to the wording of the provision in question. As will be explained below, this is where this argument is likely to fall.
Arguments against the appointments and extensions
As is apparent from the discussion, it ultimately boils down to how the Federal Constitution is to be interpreted. Numerous apex court decisions have supported the view that constitutional provisions are not to be interpreted in isolation and literally. The Federal Constitution must be read as a whole, and its provisions interpreted harmoniously and purposively.
Article 122(1A) was introduced by the Constitution and Malaysia Act (Amendment) Act 1965 (31/1965). It came into force on 01.07.1965. A purposive reading of the said provision requires a careful analysis on its legislative history. The explanatory statement to the Malaysia Act (Amendment) Bill made it clear that the object of the amendment, including the introduction of Article 122(1A) was to ensure due compliance with the then section 38(1), Courts of Judicature Act 1964 (“CJA”) (now section 74(1)), which provides that every proceeding in the Federal Court be heard and disposed of by 3 judges or such greater uneven number as the CJ may in any particular case determine This was consistent with the speech of the minister who moved the said bill in the Dewan Rakyat, where he said:
“It also includes a provision for increasing the number still further, when it is considered necessary to do so. This amendment is in keeping with the Courts of Judicature Act which provides that proceedings in the Federal Court shall be heard by three judges or such greater number of judges as the Lord President may in any particular case decide.”
Concerns were raised by members of the opposition that the said provision might be inconsistent with Article 122B, which provided for appointments to be made on the advice of the Prime Minister. Further, the term “high judicial office” was not defined. In responding, the minister said:
“Chadangan yang di-shorkan di-sini ia-lah supaya memberi kuasa melantek hakim sementara, jadi itu-lah sebab-nya ada perbezaan sadikit chara hendak melantek hakim yang di-chadangkan dalam pindaan ini.”
A purposive reading shows that the appointment of additional judges can only be made in exceptional circumstances, i.e. for compliance with section 74(1), CJA. This reasonably implies two things: first, where there were/are sufficient judges of the Federal Court to allow for compliance with the said provision, there could not be said to be any need (and basis) for an appointment under Article 122(1A) and the CJ is not empowered to make a recommendation under that provision; and secondly, the need for such an appointment would arise only where there was reasonable basis to conclude the court would find it problematic to comply with the said provision.
Even when it comes to appointment of additional judges for a certain period of time (as opposed to for a particular case), such appointment could arguably only be made if, for example, there were insufficient federal court judges at that material time or if there were a number of important public interest cases in that period which required a larger panel of judges.
A literal interpretation of Article 122(1A) would allow for the CJ to recommend ad hoc appointments of any number of former judges who had held “high judicial office” for such purpose and period of time as the CJ subjectively considers appropriate. This is problematic as it would effectively render Article 122B (appointment of Federal Court judges by the YDPA on advice of the Prime Minister) redundant. It must be noted that appointment of additional judges essentially bypasses the strict selection criteria imposed by the Judicial Appointments Commission (Selection Process And Method Of Appointment Of Judges Of The Superior Courts) Regulations 2009.
If Article 122(1A) is read purposively in the manner suggested above, it stands to reason that additional judges, who are appointed in exceptional circumstances for limited reasons, cannot be appointed to hold the position of CJ and PCA under Article 122B(1) (it would be inconsistent with Article 122(1A)). There is a more important dimension. As noted above, the Federal Constitution must be read harmoniously where “respect must be paid” to “the traditions and usages” of the provisions in it. The principle of separation of powers and the independence of the judiciary are sacrosanct. The Federal Court had recently in Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat [2017] MLJU 535 had pithily declared that the independence of the judiciary is a basic feature of the Federal Constitution. Even an amendment to the Federal Constitution cannot undermine the independence of the judiciary.
The appointment of an additional judge as the CJ or PCA would lead to an undermining of the independence of the institution, in perception if not in fact. It would also give rise to questions as to why the other capable Federal Court judges cannot be appointed as CJ and PCA. Further, the Prime Minister, in advising the YDPA on the appointment of the CJ and PCA, is obliged to consider the report by the Judicial Appointments Commission under the Judicial Appointments Commission Act 2009 (section 21). Section 2 of the said act requires that the prime minister uphold the independence of the judiciary. The said section provides:
“The Prime Minister must uphold the continued independence of the judiciary and must have regard to-
(a) the need to defend that independence;
(b) the need for the judiciary to have the support necessary to enable them to exercise their functions;
(c) the need for public interest to be properly represented in regard to matters relating to the judiciary, the administration of justice and related matters.”
Tellingly, the statement by the Prime Minister’s Office makes no mentions of the Judicial Appointments Commission.
In any event, going back to their very appointments as additional judges, the language of Article 122(1A) does not appear to support prospective appointments. It clearly used the words “person who has held high judicial office”. At the time of the appointments, both judges were, and still are, holding high judicial office.
Conclusion
Putting aside the legal provisions, it all comes down to a cardinal universal principle: that the judicial institution must be seen to be independent. This principle is a fixed-star in any democratic society and was considered by an eminent judge as a “constitutional religion”. The public perception on the judicial institution is pivotal in any functioning democracy. The judicial institution draws its strength from public confidence. This must be the primary criterion for any judicial appointment.
* Surendra Ananth is an advocate and solicitor in the High Court of Malaya.
** This is the personal opinion of the writer and does not necessarily represent the views of Malay Mail Online.
