Top judges’ term extension a ‘backdoor’ attempt to rewrite Constitution, lawyer says

By Ida Lim
Steven pointed out the flaws in the announcement of the appointment of Raus and Zulkefli as additional judges before they had retired, with the appointment to take effect after their retirement. — Picture by Saw Siow Feng

PUTRAJAYA, March 14 — The term extension of the country's two top judges beyond their mandatory retirement age without changing the constitutional age limit is a "backdoor" way of rewriting the Federal Constitution, a lawyer told the Federal Court today.

Steven Thiru, who represented the Malaysian Bar, was arguing that the appointment of Chief Justice Tun Md Raus Sharif and Court of Appeal president Tan Sri Zulkefli Ahmad Makinudin as "additional judges" of the Federal Court to effectively extend their tenure, was unconstitutional.

In highlighting what appeared to be a bypass of the judges' legal retirement age, Steven pointed out that the federal government's announcement last July of the duo's appointment had even mentioned the possibility of amending the age limit.

"The government said it is contemplating tabling a proposal in Parliament for the amendment of Article 125 to raise the retirement age of judges to 70 years.

"Thus, with the greatest respect, this is a backdoor attempt to rewrite Article 125(1) by use of Article 122(1A)," he said.

The Federal Constitution's Article 125(1) limits a Federal Court judge's term to 66 years and six months, while Article 122(1A) allows for the Yang di-Pertuan Agong to appoint someone who "has held high judicial office" to be an additional judge of the Federal Court.

Raus and Zulkefli were both due to retire as Chief Justice and Court of Appeal president last August 4 and September 28, but the government last July announced in advance their post-retirement appointment as additional judges and that they would then continue to hold the same positions.

Today, Steven had also pointed out the flaws in the announcement of the appointment of Raus and Zulkefli as additional judges before they had retired, with the appointment to take effect after their retirement.

He said the words "has held" meant that only judges who had already retired could be appointed as additional judges, noting that the Hansard which records Parliament proceedings showed that Article 122(1A) was introduced with the intention of increasing the number of Federal Court judges.

That means a judge who has yet to retire should not be appointed as additional judge, he said.

"If that was the purpose, then the appointment of additional judge can't be an incumbent...It can't be an incumbent because that would be maintenance of status quo and that is not the intention of the framers of the Constitution," he argued.

Lawyer Datuk Ambiga Sreenevasan, who also represented the Malaysian Bar, said the additional judges route cannot be used to circumvent the retirement age limit and to extend the Chief Justice's term.

"The correct way is to increase the retirement age, you can't have on one hand the retirement age - 66 years, and take steps which violate the Constitution," she said.

Additional judges can't be Chief Justice

Ambiga also argued that additional judges of the Federal Court cannot be appointed as office holders such as the Chief Justice and Court of Appeal president, saying that such positions should only be for tenure judges with a known retirement age in order to safeguard judicial independence.

"In fact, appointment of Chief Justice using this route, it's the first time, it has never happened before," she said of the use of the additional judges method.

"My stand is, appointment of additional judges can only be upon very specific circumstances. That's why in this country, it has only happened twice...this appointment is unprecedented," she said.

Former Federal Court judges Tan Sri S. Chelvasingam MacIntyre and Tan Sri Jeffrey Tan Kok Hwa, who respectively retired in 1968 and November 2015, were appointed as additional judges for a period of time. In Tan's case, he was appointed on July 1, 2016 to serve for two years.

On October 10, 2017, the Malaysian Bar had filed a lawsuit against Chief Justice Raus and his immediate predecessor Tun Arifin Zakaria, Court of Appeal president Zulkefli and the Malaysian government.

The Malaysian Bar had sought various court orders, including declarations that the appointment of Raus and Zulkefli as additional judges and their subsequent appointments as Chief Justice and Court of Appeal president are "unconstitutional and void".

The Malaysian Bar's lawsuit was heard together with a similar court challenge by Ranbir Singh Sangha, who sued on behalf of the Advocates Association of Sarawak which he is president of.

Today, the Attorney-General's Chambers, which represented the Malaysian government and judges, argued that it was not unconstitutional to announce the duo's appointments before they had retired.

Among other things, it said the announcement was to inform the public of the upcoming appointments which would take effect after the duo retired, also arguing that the duo were eligible as additional judges to be appointed as Chief Justice and Court of Appeal president.

The hearing of four questions of law posed by the Malaysian Bar and Ranbir concluded today, with the Federal Court to deliver its decision on a date to be fixed later.

The seven-man panel today was headed by Tan Sri Hasan Lah and composed of Tan Sri Zainun Ali, Tan Sri Ramly Ali, Tan Sri Zaharah Ibrahim, Datuk Seri Balia Yusof Wahi, Tan Sri Aziah Ali and Datuk Alizatul Khair Osman Khairuddin.