THE judiciary has been under fire for the past week, particularly over the appointment of Chief Justice Tan Sri Md Raus Sharif and Court of Appeal President Tan Sri Zulkefli Ahmad Makinudin as additional judges.
Many have voiced out concerns on the constitutionality aspect of this appointment. According to a media statement issued by the Prime Minister’s Office dated July 7, the appointment was made in accordance with Article 122 (1A) of the Federal Constitution, which provides that: “Notwithstanding anything in this constitution, 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.”
There is also a proviso to the above Article which states: “Provided that no such additional judge shall be ineligible to hold office by reason of having attained the age of sixty-six years.”
According to the above provision, the Yang di-Pertuan Agong may appoint an additional judge, but the appointment must be made on the advice of the sitting chief justice of the Federal Court. Looking at the chronology of the events, the then sitting chief justice Tun Arifin Zakaria had advised the Yang di-Pertuan Agong on March 30 with regard to the appointment of the additional judges. He retired the next day. Therefore, Tun Arifin was still the chief justice when the advice was given to the Yang di-Pertuan Agong.
This was done in consonant with Article 122 (1A). With all due respect, I don’t see how the appointments were made unconstitutionally. The advice was made when Tun Arifin was the sitting chief justice of the Federal Court, as required by Article 122 (1A). The Federal Constitution is, however, silent on whether the advice should be accepted when Tun Arifin was still holding the office or not.
The appointment of additional judges to the Federal Court is not unprecedented. Last year, Jeffrey Tan Kok Hwa was re-appointed to the Federal Court as an additional judge. And, another appointment in 1965, where S. Chelvasingam Macintyre was re-appointed to the apex court.
For what it is worth, I concur with the statement made by my learned friend Tan Sri Muhammad Shafee Abdullah. Article 122 (1A) has clearly set out the requirements of the appointments of the additional judges, which had been adhered to.
DATUK HAZMAN AHMAD
Advocate and solicitor of the High Court of Malaya