[Edited by S. Kamatchy and Suria Juan Pillai]

In an article dated 13.07.2018, the ex-Chief Justice, Tun Abdul Hamid says that from 9:30 p.m. on July 11 up to midnight July 31, 2018 there are now two Chief Justices.

Is he right?

The long and short of all of this is…

When the King accepted the resignations of the outgoing CJ and the PCA on 8 June 2018, their offices ceased. The King did not extend their term up to July 31st, 2018–even though they asked for it.  There is a reason for this: it is because even the King had no Constitutional power to do that.

In law, the office of the Chief Justice had fallen vacant long before Tan Sri Richard Malanjum had been appointed as Chief Justice of the Federal Court.

The King’s decision to appoint Richard as CJ, and Ahmad Maarop as PCA meant that the King had impliedly dismissed both the ex-CJ and the ex-PCA.

Therefore Tan Sri Richard Malanjum’s appointment as Chief Justice was entirely valid.  So also the appointment of Tan Sri Ahmad Maarop as President of the Court of Appeal.

Therefore, in my respectful view, the ex-CJ was not quite right when he said that ‘there are now two CJs.’

Here is why…

The ex-CJ has raised a number questions over the appointment of Tan Sri Richard Malanjum.

• Could Tan Sri Richard Malanjum be sworn-in as Chief Justice (‘CJ’) when Tun Raus Sharif has not vacated his post?
• When did the Judicial Appointments Commission (‘JAC’) [whose role relates to ‘the appointment of judges of the superior courts’ under the JAC Act 2009] decide to appoint Richard as CJ?

The ex CJ’s & PCA’s resignations took effect immediately

The ex-CJ assumes that the post–dated resignations of the ex-CJ and the President of the Court of Appeal (‘PCA’), Tun Raus Sharif and Tan Sri Zulkefli Makinudin— on June 07^th, 2018 are valid.

Did the Constitution give those two gentlemen the power to post-date their resignations?

In resigning, both these judges had invoked Article 125(2) of the Federal Constitution.  It says:-

‘A judge of the Federal Court may at any time resign his office by writing under his hand addressed to the Yang di-Pertuan Agong…’.

The tenor of the language of Article 125(2) is that if a judge decides to resign, and hands-in his resignation letter, and the King accepts it–which the King did on 8 June 2018–then such resignation take effect on the date of the King accepts it.

There is no power in the Constitution by which the outgoing CJ and PCA could dictate to the King when they were leaving. If that is the way Article 125(2) is construed, post-dated resignations violate the spirit of the Constitution.

Employment law should not be confused with Constitutional law

Tun Abdul Hamid states that the process of ‘garden leave is not applicable to the CJ.’

One should not confuse Employment law with Constitutional law. They are dissimilar. Employees often post–date their resignations because of contractual requirements. There was no such contractual requirement in the Constitution when it deals with a CJ.

That leads to the next question: how should the Constitution be interpreted when it comes to the ‘Two CJs’ issue?

Constitutional interpretation must incorporate rules of natural justice

In the case of Ong Ah Chuan v PP,  the Privy Council ruled that Constitutional interpretation should ‘incorporate fundamental principles of natural justice’: [1981] 1 MLJ 64.

Two points arise from the application of this principle.

First, the Bar Council had sued the outgoing CJ and PCA.  The Bar Council says their appointments were illegal.  It asks the Federal Court to decide on it. A decision on it is now pending.

A question that arises from these circumstances is:

Are the outgoing CJ and the PCA men who wield power?

They do. They each were, at the time of their resignations, the head and deputy head of one arm of government–the Judiciary.

The next question clears any doubt: Were they invoking a Constitutional power to perpetuate the duration of their offices–and by consequence–their powers?

The answer cannot be a ‘No’.

Next, by their exercise of that [non-existent] Constitutional power did they benefit personally? What do you think?

So isn’t the post–dating of their resignation prejudicial to the principles of natural justice? Who would say that the answer would be a ‘No’?

And so the argument of the ex-CJ cannot be quite right.

Does the JAC need to be consulted? It couldn’t because it was comatose!

The ex-CJ then asks ‘When did the JAC have its meeting?

Now, the ex-CJ does not complain that they had not consulted the Conference of Rulers.

His attack is that the JAC has not been consulted. He assumes that in every case where a CJ has to be appointed, the JAC must first meet, and choose a candidate.

The first answer is, the PM is not, under the Constitution, required to accept the recommendations of the JAC. This is because Article 122B states that: –

‘The Yang di-Pertuan Agong shall appoint The Chief Justice of the Federal Court, the President of the Court of Appeal, acting on the advice of the Prime Minister, after consulting the Conference of Rulers.’

The second answer to his lordship’s anxieties is found in the Judicial Appointments Commission Act 2009 (‘JACA’).

The JAC’s constitution is  determined by section 5 of JACA.  The Commission has only 9 individuals, including the Chairman. It is comprised in:-

• the CJ;
• the PCA;
• Chief Judge of the High Court in Malaya;
• the Chief Judge of the High Court in Sabah and Sarawak;
• a Federal Court judge appointed by the PM;
• and 4 eminent persons.

The important phrase in sec.13(4) which says that,

‘the quorum [of the Commission in meeting]… shall be 7 including the Chairman.’

The Chairman of the JAC is the outgoing CJ. The person who can replace him, as Chairman, is the PCA. But where the CJ is, for any reason, ‘unable to perform his functions,’ the PCA shall act as the Chairman of the Commission: [section 8(1)(2) JACA].

But what happened on June 8, 2018? Both the CJ and the PCA resigned from their respective offices. Both had vacated their office.

So from that time forward, how was the JAC to function? It had no Chairman.  And his replacement had also resigned.  It had become comatose!

It could not act.

Principle of necessity

So the PM had a Judiciary that had lost two of its leaders.

So what was he to do?

There is a legal answer.

Under the principle of ‘necessity’ it is entirely possible for leaders of the nation to act—outside the four corners of the law— so long as it is in the best interest of the country This concept was introduced by the medieval jurist Henry de Bracton,  an English Ecclesiastic and Jurist [De Legibus, 1240].  William Blackstone,another renowned jurist acknowledged and developed this principle in 1768.

Two succinct phrases demonstrate the principle of necessity: –

‘Which is otherwise not lawful is made lawful by necessity’

‘An ounce of prevention is worth a pound of cure.’

That the King himself saw it fit to appoint the new CJ and the new PCA on 11 July 2018 demonstrates that the PM and the King were acting under the principle of necessity.

So…

The office of the Chief Justice fell vacant long before Tan Sri Richard Malanjum had been appointed as CJ.  His appointment as Chief Justice, was, therefore wholly valid.

So was the appointment of Tan Sri Ahmad Maarop as the President of the Court of Appeal.