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 • PM makes
decisions on key judicial posts, says top judge
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PM has ultimate
say on appointment of CJM, says CJ
©The Star (Used by
permission)
by Raphael Wong
• No time limit for King to give his okay
KUALA LUMPUR: A major poser has arisen over the position of the Chief Judge
of Malaya, which has been left vacant since January.
With no official announcement as to whether the Conference of Rulers endorsed
any candidate to fill the judiciary’s number three position at its meeting last
month, speculation is mounting on the issue.
Chief Justice Tun Ahmad Fairuz Sheikh Abdul Halim explained yesterday that Prime
Minister Datuk Seri Abdullah Ahmad Badawi had the final say on the appointment.
Fairuz, who is the Acting Chief Judge of Malaya, pointed out that the process of
consultation did not make things binding on the Prime Minister, meaning the
latter did not have to accept his choice of candidate.
“The ultimate decider is still the Prime Minister because the King acts on the
advice of the Prime Minister,” he told newsmen after witnessing the appointment
of eight Judicial Commissioners at the Palace of Justice in Putrajaya.
He also refuted media reports quoting him as saying that the appointment would
be made by Aug 31, saying there was no such deadline.
The position of Chief Judge of Malaya has been vacant since Tan Sri Siti Norma
Yaakob, the first woman to hold the post, retired on Jan 5.
There have been growing concerns over the unfilled position, with the Bar
Council also questioning if it was proper for Fairuz, as the country’s top
judge, to simultaneously hold another judicial position.
Fairuz dismissed talk that the Rulers had turned down the Government’s preferred
candidate, who he said he could not name.
“I don’t know whether the Conference of Rulers has rejected the Prime Minister’s
choice. It’s under the Official Secrets Act ... How can one know about it?” he
asked.
Article 122B of the Federal Constitution stipulates that the Chief Judge shall
be appointed by the King, acting on the advice of the Prime Minister, after
consulting the Conference of Rulers.
Fairuz had said last week that the candidate did not necessarily have to be one
of the eight judges from the Federal Court as the post could also be filled by a
Court of Appeal or High Court judge.
The eight new Judicial Commissioners sworn in yesterday were Azman Abdullah,
Datuk Hinshawati Shariff, Mohd Yazid Mustafa, Zainal Azman Ab Aziz, Yew Jen Kie,
Datuk Ahmadi Asnawi, and lawyers Zamani A. Rahim and Vernon Ong Lam Kiat.
With this, there are now 41 High Court judges and 26 Judicial Commissioners.
The post of Court of Appeal president, the judiciary’s No. 2 position, is also
vacant following the death of Justice Tan Sri Abdul Malek Ahmad in May.
Federal Court judge Datuk Alauddin Mohd Sheriff is assuming the duties of the
Court of Appeal president.
No time limit for King to give his okay
KUALA LUMPUR: There is no time limit for the Yang di-Pertuan Agong to
endorse the appointment of the Chief Judge of Malaya, according to a
constitutional expert.
Prof Shad Faruqi, who is Professor of Law at University Teknologi Mara, pointed
out that there was no provision in the Federal Constitution to by-pass the King
in making the appointment because the letter of appointment must come from the
King.
However, he noted that legally, the Conference of Rulers had no right to veto
the choice of candidate put before them.
He said that according to the law, the candidate would be chosen on the advice
of the Prime Minister to the King, who would then consult the Conference of
Rulers.
“It is only consultation. This means no consent is required and it is not
binding.
“So the Conference of Rulers have the right to express their opinions and
concerns, if any, but not the right to veto,” he said.
Prof Faruqi said while it was clear under Article 40 (1) of the Federal
Constitution the King was bound by the Prime Minister's advice, yet at the same
time the King must show respect to the views of the Conference of Rulers.
“The Conference of Rulers put the King there and they can also dismiss him,” he
said, adding that such a situation could pose a dilemma to the King.
Prof Faruqi added that there were also no sanctions if the King did not follow
the Prime Minister's advice on judicial appointments, adding that as this was a
grey area, convention and customs must play a role.
“Legally, the Conference of Rulers must give their consent. Consultation does
not mean that advice (given by the Conference of Rulers) must be obeyed,” he
said.
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Circular No 106/2012: Accountant’s Report 2011
This is definitely out of date. The constitution must be amended in order to have a transparent and meritorious system of appointment of judges. If the PM has the ultimate say, does that mean that the PM is the CJ's boss and is it true that the CJ's leave needs to be approved by the PM?
Nicole Tan Lee Koon