CJ’s appointment challenged

LAST week a larger than normal number of Federal Court judges (seven) heard a case unprecedented in Malaysian legal history. The Malaysian Bar challenging the constitutional validity of the appointment of the chief justice (CJ) and the president of the Court of Appeal (PCA).

The Bar contended as follows. The Constitution explicitly states that the CJ's term of office is to be 66 years plus six months. After that he must retire. Only a person appointed by the CJ as an additional judge can hold office beyond this prescribed period. Such appointment is expressly provided for in the Constitution. There is no extension allowed for the CJ's term. So his term ends in accord with the constitutionally-prescribed tenure period.

But, argued the Bar, the CJ's term was extended through a rather convoluted and unconstitutional process.

First, the previous outgoing CJ, before he retired in March 2017, appointed the sitting CJ and the PCA as additional judges of the Federal Court. And this appointment was to take effect after they retired, some five months later. That is, in the future. And then the PM advised the Yang di-Pertuan Agong to appoint the additional judge to continue as the new CJ. Under the Constitution the PM's advice must be followed.

Now this two-step approach was not countenanced by the Constitution. Indeed, said the Bar, when the minister moved an amendment in Parliament authorising the appointment of additional judges, he said this should be done "when it is considered necessary to do so". Only a sitting CJ will know when it was indeed necessary to do so. Based on the need for the appointment of additional judges to help with the workload.

Else an outgoing CJ can dictate the appointment of an additional judge to take place sometime in the future – well after his term ends. This would by-pass the authority of the sitting CJ, rendering impotent his role in this regard.

And the constitutional provision mandating retirement of the CJ at 66 years (plus six months) would be effectively thwarted. Worse, if the appointment is at the behest of the executive (which decides who is to head the judiciary – in this case for the next three years), then the doctrine of the separation of powers (between the executive, the legislature and the judiciary) could well have the "unfortunate effect of allowing the executive a fair amount of influence over the matter of the jurisdiction of the ... court": as declared our apex Federal Court in the landmark Semenyih Jaya case. Thus undermining the independence of the judiciary – a basic feature of the Constitution – which even Parliament cannot amend. This facet was reaffirmed in the Indira Gandhi case by the Federal Court, as recently as this year.

The Association of Muslim Lawyers opposed the Bar. Arguing that the extension was permissible to retain "old gold". The "low age" of 65 (later 66) was fixed by the drafters of the Constitution – the Reid Commission – because "the 'tropical climate' in Malaysia would have a detrimental effect on the life expectancy or perhaps even the senility of judges when compared to the United Kingdom."

This, argued the association's lawyer, was disproved by the significant advances in medicine. Conceding that the amending of the retirement age in the Constitution is a matter for legislation, nonetheless, said the lawyer, the Constitution should be interpreted to prevent Federal Court judges from being ousted prematurely "when their best years are yet ahead".

The Attorney-General's Chambers (AGC) submitted that there is no limitation to the right of an outgoing CJ to advise on the appointment of a future CJ. And that this two-step process could be resorted to – first appointing the CJ as an additional judge and then elevating him as a CJ (or PCA). Finally, said the AGC lawyer, the PM has exclusive discretion on the appointment of judges and his decision and the consequent appointment by the king, could not be queried or overturned. In short, it was non-justiciable.

In its concluding remarks, (reiterating it had nothing personal against the appointees), the Bar warned against the hurt to the Constitution for appointments to be made in violation of the Constitution. And its adverse consequences for sitting judges and the independence of the judiciary. "The outcome in this case will reverberate long after we are gone", cautioned the Bar.

Now we await the final judgment. The seven judges will no doubt anxiously weigh the diverse issues raised. Can a real or imagined "tropical climate" and climate change argument be a basis for circumventing explicit constitutional provisions? Is the PM's discretion unfettered and absolute – unreviewable by the courts? How will this square up with the separation of powers doctrine enunciated by our highest court as the basic structure of the Constitution? The impact of the appointments on the security of tenure of judges and ultimately judicial independence? Above all the vexed conundrum – how to deal with an application that will affect their first-among-equals fellow judges?

And perhaps not too far away from their thoughts, Marc Anthony's speech in Shakespeare's Julius Caesar: "The evil that men do lives after them; the good is oft interred with their bones".

Gurdial, a former law professor at University Malaya, is in legal practice as a consultant. Comments: letters@thesundaily.com