A mockery of the Federal Constitution — Hafiz Hassan

JULY 11 — This piece adds to the on-going debate over the recent extension of appointment of the current Chief Justice and the President of the Court of Appeal under Article 122(1A) of the Federal Constitution.

Surendra Ananth (“A neutral view on the appointments of Md Raus Sharif and Zulkefli Ahmad”) has presented arguments for and against the extension of appointment. In the arguments in support of the extensions, he notes that nothing in Article 122B(1) of the Federal Constitution (which provides for the appointment of the Chief Justice of the Federal Court (CJ) and President of the Court of Appeal (PCA), among others) says that an additional judge of the Federal Court cannot be appointed as the CJ or PCA. There is no express prohibition.

However, such argument is flawed for failing to relate the appointment of the additional judge of the Federal Court as the CJ or PCA to the appointment of the additional judge himself under Article 122(1A) of the Federal Constitution. 

Article 122(1A) provides for the appointment by the Yang di-Pertuan Agong (YDPA) of an additional judge of the Federal Court. However, the YDPA must act on the advice of the CJ. 

Can the CJ advise the YDPA to appoint himself as an additional judge of the Federal Court?

According to the Bar Council, the appointments of the CJ and PCA are on the advice of the then-CJ, YAA Tun Dato’ Seri Arifin Zakaria on 30 March 2017, a day before his retirement. The advice of the former CJ on 30 March 2017, prior to his retirement, was considered and accepted by the YDPA 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 CJ. 

Can the advice of a former CJ be acted on when there is a sitting CJ? If yes, then it opens a Pandora box. 

The Federal Constitution is replete with clauses that the YDPA acts on advice — of the Cabinet or of a Minister. The overriding constitutional clauses are found in Article 40(1) and Article 40(1A) that in the exercise of his functions under the constitution, the YDPA is required to act in accordance with the advice of the Cabinet or of a Minister acting under of the Cabinet (unless otherwise provided by the constitution). By virtue of constitutional conventions, “the advice of the Cabinet” has come to mean “advice of the Prime Minister”. (See Shad Faruqi, Document of Destiny: The Constitution of the Federation of Malaysia, at p 434)

Let’s consider Article 145 of the Federal Constitution where clause (1) expressly mentions the Prime Minister as the person to advise the YDPA on the appointment of the Attorney General.

Can the words “Prime Minister” be read to include a former Prime Minister while there is a Prime Minister in office? If yes, then such reading is not supported by the majority decision of the Federal Court in Badan Peguam Malaysia v Kerajaan Malaysia [2008] 2 MLJ 285. In this case, as presented by Surendra Ananth, the majority took the position that the words “in practice” or “having practised” for 10 years could not be read into Article 123(b) of the Federal Constitution.

Even without the authority of the above, to include a former CJ or former Prime Minister in reading the constitutional clauses would only make a mockery of the Federal Constitution, to borrow the words of Puthan Perumal (“Oath of a Federal Court judge in the presence of the Chief Justice”).

Be that as it may, as Surendra Ananth also argues, it all boils down to how the Federal Constitution is to be interpreted. But statutory provisions cannot be read in isolation.

In the case of Lembaga Minyak Sawit Malaysia v Arunamari Plantations Sdn Bhd & Ors and another appeal [2015] 4 MLJ 701, the Federal Court had to consider the legality of an order made under section 35 of the Malaysia Palm Oil Board Act 1998 (the Act) for the imposition of cess on certain classes of oil palm producers. It was argued, among others, that the order was ultra vires the Constitution, namely Article 96 (no taxation unless authorised by law) and Article 8 (equality before the law) of the Federal Constitution.

The Federal Court took time to consider the provision and held that it could not be read in isolation from the rest of the provisions of the Act to understand the purpose of the imposition of the cess. The Federal Court sat with a strong bench of 5 judges. The Federal Court judge who presided over the bench? YAA Raus Sharif, PCA (as his Lordship then was) who also delivered the judgment of the Federal Court.

* This is the personal opinion of the writer and does not necessarily represent the views of Malay Mail Online.

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