The late-night announcement of appointment of Tan Sri Raus Sharif as “additional judge” to remain as Chief Justice for another three years is unprecedented and unconstitutional and has plunged Malaysia into a new constitutional crisis.
Late night announcements seem to have become a new modus operandi of the Najib premiership – as another late-night announcement last night was the Prime Minister, Datuk Seri Najib Razak’s statement firing a ferocious salvo against former Prime Minister, Tun Dr. Mahathir Mohamad.
My statement on Wednesday on the three questions troubling judges, lawyers, legislators and informed Malaysians for some time may have expedited the late-night announcement last night on the illegal and unconstitutional appointment of Chief Justice Md Raus Sharif as an “additional judge” and extension of his tenure as Chief Justice for another three years.
The three questions that had been swirling in the minds of judges, lawyers, legislators and informed Malaysians for quite some time, and answered by the late-night announcement last night, were (i) whether the country will have an illegal and unconstitutional Chief Justice after August 3, 2017; (ii) whether a new constitutional crisis will blow up in the face of Parliament during its three week July/August meeting from 24th July to 10th August with the appointment of an illegal and unconstitutional Chief Justice; and (iii) whether the country will be celebrating the 60th National Day anniversary and the1957 Merdeka Constitution with a most serious assault on the sanctity and integrity of the fundamental provisions in the 1957 Merdeka Constitution on the doctrine of separation of powers and the independence of the judiciary.
May be Najib is taking heart and encouragement from the support the Prime Minister is receiving from the PAS President, Datuk Seri Hadi Awang over the 1MDB scandal to commit the latest unprecedented and unconstitutional act.
Najib struck gold when he enlisted Hadi as his chief defender and apologist for the 1MDB scandal.
In fact, Hadi’s novel defence of Najib and the 1MDB scandal, claiming that the 1MDB scandal is a consequence of Barisan Nasional’s motto of “leadership by example” over the years, could also be used to defend other abuses power and even outright illegal and unconstitutional actions, like the unconstitutional appointment of Raus Sharif as “additional judge” and extension of his tenure as Chief Justice for another three years.
Many jurists, including a former Chief Justice, a former Federal Court judge, a former Law Minister and the Malaysian Bar have expressed their concern at the possibility of the appointment of an illegal and unconstitutional Chief Justice but the Prime Minister and the Attorney-General are both unmoved by their concerns and reasons.
Former Chief Justice Tun Abdul Hamid Mohamad has publicly stated that a further extension to the tenure of Chief Justice Md Raus Sharif after the 66 years and six months would be unconstitutional.
Hamid wrote in his blog that he was not writing because he does not like Justice Raus, but was merely highlighting his point of view on the constitutionality of prolonging Justice Raus tenure by appointing him as an “additional judge” and extending his tenure as Chief Justice.
Hamid, who was Chief Justice from November 2007 to October 2008, stressed that an extension beyond the 66-year and six-month tenure for Justice Raus may compromise the independence of the judiciary.
He suggested that Justice Raus should decline the further extension even if the government had offered him a renewed appointment as Chief Justice after August 3.
Other jurists have expressed similar views and concerns.
Former Federal Court judge Tan Sri Gopal Sri Ram said there are capable judges to take over the position of Chief Justice should Justice Raus retire as the country’s top judicial officer.
He warned that if the government defied the constitutional and legal restraints and proceeds to extend the tenure of the chief justice, then it would “sow the wind but reap the whirlwind”.
The Malaysian Bar president George Varughese expressed concern that the extension of the tenure of the top judge of the country is not only unconstitutional but unfairly embroils Chief Justice Raus in a controversy, as well as putting in jeopardy the chief justice’s standing and giving the impression there is no one else in the judiciary who could take up the position.
Criticism of the move to retain Raus as top judge also came from former de facto law minister Datuk Zaid Ibrahim and former Bar Council president Datuk Param Cumaraswamy.
Raus should be reminded that last April, when he took his oath as Chief Justice, he pledged that he would carry out the duties of the office to the best of his abilities as required by the Federal Constitution.
The ball is now in Raus’ court – whether he is prepared to uphold the sanctity and integrity of the Constitution by declining the appointment as “additional judge” and extension of his tenure as Chief Justice.