THE glittering generalities of the Constitution should be interpreted creatively and constructively with a view to solving problems. It is unfortunate that the extension of appointment of Tan Sri Raus Sharif as Chief Justice of the Federal Court and of Tan Sri Zulkefli Ahmad Makinudin as President of the Court of Appeal is being questioned by some quarters on grounds which are purely technical and which reflect a rigid and pedantic view of our basic law.
It has long been recognized in the Commonwealth that a Constitution being a living piece of legislation must be construed broadly “with less rigidity and more generosity than other Acts” (Minister of Home Affairs v Fisher [1980] AC 319; Dato’ Menteri Othman Baginda v Dato’ Ombi Syed Alwi (1981) 1 MLJ 29). A Constitution exists to meet the felt necessities of the times and to solve problems and challenges that wash up at our shores.
In the matter of judicial tenure, what was the problem that had recently washed up at our shores? The problem was that we have an archaic provision in Article 125(1) on mandatory retirement age for judges which requires superior court judges to retire at a relatively early age of 66 with a possible extension of only six months. This compares unfavorably with most Commonwealth countries where judges serve in office up to age 70 or more.
The present Chief Justice Tan Sri Raus Sharif and the present President of the Court of Appeal Tan Sri Zulkefli Ahmad Makinudin who were appointed to their present posts only in April 2017 would have had to vacate their high offices within four months and six months respectively after their appointment! August 3, 2017 would be the retirement date for Tan Sri Raus and September 27, 2017 for Tan Sri Zulkefli!
Four and six months in office are hardly enough time to familiarize oneself with a job, what more to leave any footprints for others to follow.
To overcome this problem, two measures were undertaken.
First, the then Chief Justice, Tun Arifin Zakaria, acted under the authority of Article 122(1A) to recommend to the King that Tan Sri Raus Sharif and Tan Sri Zulkefli Ahmad Makinudin be appointed as Additional Judges after they retire from the Federal Court.
Second, the Prime Minister, in an unprecedented but legally justifiable innovation advised the King under Article 122B(1) to appoint Tan Sri Raus Sharif, who is an Additional Judge with effect from August 4, 2017, to continue to hold the post of Chief Justice till his 3-year term as Additional Judge comes to an end. Likewise Tan Sri Zulkefli Ahmad Makinudin has been extended as President of the Court of Appeal till his term as Additional Judge comes to an end.
The purpose of these “extensions” was to enable continuity beyond Tan Sri Raus Sharif’s incredibly short four-month stint as Chief Justice and Tan Sri Zulkefli’s six months as President.
Appointment of Additional Judges
When ex-Chief Justice Tun Arifin Zakaria retired on March 31, 2017, his successor had only four months before the successor would be due for retirement on August 3, 2017. For this reason Tun Arifin, after much consultation and consideration, relied on Article 122(1A) to advise the Yang di-Pertuan Agong to appoint Tan Sri Raus Sharif and Tan Sri Zulkefli Ahmad Makinudin as Additional Judges after their impending retirement in August and September 2017, respectively. Tun Ariffin’s purpose was to secure continuity and administrative efficiency.
Article 122(1A) is crystal clear that the King “acting on the advice of the Chief Justice of the Federal Court may appoint for such purposes or for such periods as he may specify any person who has held high judicial office in Malaysia to be an additional judge of the Federal Court”.
It is noteworthy that the PM was not involved in the Article 122(1A) appointments. It is also noteworthy that twice in our previous history Article 122(1A) was utilized to enrich the Federal Court with distinguished retirees.
Critics have raised two prominent objections to the manner of appointment of Tan Sri Raus Sharif and Tan Sri Zulkefli Ahmad Makinudin as Additional Judges and these objections must be noted:
1. It is alleged that the advice to the Monarch to appoint an Additional Judge must be rendered by the Chief Justice who is in office at the time the Additional Judge is appointed and not by an ex-CJ as has happened in this case.
With all due respect, nothing in Article 122(1A) or in common sense dictates this interpretation.
• The incumbent Chief Justice, as any Head of Department, is entitled to submit his advice and recommendations till his last day in office. The advice can be for matters that are prospective and will operate only in the future. Nothing in administrative ethics requires that visions, plans, suggestions and reforms cannot be formulated for the future and must have a shelf-life date that must expire when the tenure of the incumbent expires.
• The Yang di-Pertuan Agong has the power to accept or reject the recommendation of the CJ. But in this case His Majesty saw merit in securing continuity and gave his assent to the appointment of Additional Judges.
• The King is entitled to accept and implement his CJ’s advice under Article 122(1A) any time during his royal tenure even if the CJ who approached him has ceased to remain in office.
• There is no requirement that the Monarch must take urgent action and make the appointment immediately. “Such period of time as he may specify” can commence immediately or be delayed as it was in these two cases.
• The Monarch may make the appointment for any period he may specify.
2. A second criticism is that an Additional Judge cannot be a person still in service. He or she must be a retired person, an ex-judge “who has held high judicial office in Malaysia”. In our case both Tan Sri Raus Sharif and Tan Sri Zulkefli Ahmad Makinudin were judges of the Federal Court at the time the recommendation to appoint them as Additional Judges was made.
With all due respect, the words “who has held high judicial office in Malaysia” simply mean that the commencement of the tenure of an Additional Judge must be after he has ceased to hold judicial office. The appointment cannot be concomitant with an existing judicial office. However, the recommendation to make the appointment can be given while the appointee-to-be is still in service.
Even from the linguistic point of view, the words “who has held high judicial office” do not exclude those who have held and are still holding high judicial office.
Extension of the Tenure of the CJ and the PCA
In order to continue to draw on the leadership-qualities of the two eminent, but imminently retiring judges, the Prime Minister complied with constitutional procedures in Articles 122B(1), 122B(2) to advise the King that the two Additional Judges of the Federal Court be allowed to continue in their posts as Chief Justice and President of Court of Appeal for the specified period that they are Additional Judges.
The Yang di-Pertuan Agong consulted with the Conference of Rulers under Article 122B(1) and subsequently made the necessary appointments. The appointment of Tan Sri Raus Sharif as CJ and Tan Sri Zulkefli Ahmad Makinudin as PCA beyond their retirement age has drawn the following objections:
1. It is alleged that the mandatory retirement age of 66 years plus 6 months in Article 125(1) applies to all judicial appointments other than Additional Judges appointed under Article 122(1A). It is further alleged that unless the Constitution is amended, the Chief Justice and the President of Court of Appeal cannot remain in office beyond the mandatory retirement age.
In answer to this assertion it needs to be pointed out that a Chief Justice or a President of Court of Appeal appointed under Article 122B must retire under the prescription of Article 125(1) but any judge of the Federal Court who is an Additional Judge under Article 122(1A) enjoys exemption from the mandatory retirement age of Article 125(1).
2. It is alleged that an Additional Judge cannot become the Chief Justice or President of the Court of Appeal. The post of Additional Judge was created to provide additional numbers on or special expertise to the Federal Court. It was never the purpose of Article 122(1A) to enable Additional Judges to become Chief Justice or President of Court of Appeal.
In rebuttal, it must be pointed out that Article 122(1A) is broadly worded. Additional Judges can be appointed “for such purposes” as the King may specify. No specific purpose is specified. The Constitution must be interpreted liberally.
Further, it must be noted that there is no constitutional bar to any judge of the Federal Court from becoming a Chief Justice. Under Article 122(1) the Federal Court’s composition is specified. Additional Judges appointed pursuant to Clause (1A) are part of the composition of the Federal Court. This means that an Additional Judge, being a member of the apex court, can be the Chief Justice.
3. A third objection to an Additional Judge becoming a Chief Justice is that under Article 124(2) and 124(4), a judge of the Federal Court (including an Additional Judge) must take his or her oath of office in the presence of the Chief Justice. This will become impossible if the Chief Justice and Additional Judge are one and the same person.
The reply to this trivial procedural point is that under Article 124(4) the oath can be taken in the presence of the Chief Justice or, in his absence, the next senior judge available of the Federal Court.
4. It is pointed that under the Judicial Appointments Commission Act, section 21 empowers the JAC to recommend to the PM candidates for the offices of Chief Justice and the President of the Court of Appeal. Section 26 envisages a report sent to the PM. It is alleged that if the JAC had not recommended to the PM the reappointment of the Chief Justice and the President, then the PM’s advice to the Yang di-Pertuan Agong was in violation of a mandatory procedural requirement.
In rebuttal of this argument, it can be pointed out that the JAC is an extra constitutional body. It cannot replace or substitute the procedures and requirements of the supreme Constitution. The supreme Constitution in Article 122B(1) on the appointment of judges does NOT require the PM to act on the recommendation of the JAC.
In any case, the procedures of the JAC Act are not mandatory but merely directory. The PM is not required to act on the JAC’s recommendations. The PM is not limited to the candidates recommended by the JAC.
From the point of view of constitutional and administrative law, the power conferred on the PM by the Constitution cannot be usurped by the JAC or abdicated by the PM. The PM’s discretion under Article 122B(1) is not fettered by the deliberations of the JAC.
In sum, the legal objections to the appointment of Additional Judges as CJ and President cannot stand the test of constitutional scrutiny. We should appreciate the Government’s desire for continuity and efficiency at the highest levels of the judiciary. We should appreciate the Government’s acknowledgment that the retirement age for judges is too low and a constitutional amendment is contemplated to adopt Commonwealth best practices on this point. Till then let us interpret our Constitution creatively and purposively to solve problems that have come to the fore.
* Tun Zaki Tun Azmi is the former Chief Justice of Malaysia