Hamid said that Malaysia had, in effect, two chief justices between July 11 and July 31, when Raus’s term officially ends.
He also asked why Malanjum had been sworn-in at night at Istana Negara – “which took everybody by surprise” – and whether the appointment had been made by the Judicial Appointments Commission, which is chaired by the chief justice.
Hamid also questioned a breach of seniority and protocol in Malanjum’s appointment, contending that Chief Judge of Malaya Ahmad Maarop was senior by protocol and should have been the frontrunner for the post.
He also wanted to know why the judiciary was represented at the swearing-in ceremony by only an administrative officer, the chief registrar of the Federal Court, and not by a judge.
Hamid, 76, served as chief justice from September 2007 to October 2008, after a 21-year career in the Judicial and Legal Service. He had been a judge on the High Court, Court of Appeal, and Federal Court and was president of the appeal court before being elevated to chief justice.
In his Facebook posting, Hamid said that Malaysia, in effect, would have two chief justices, with Malanjum taking office from 9.30pm on July 11, until midnight on July 31, when Raus’s term ends.
(Last month, the judiciary announced that Raus and Court of Appeal president Zulkefli Ahmad Makinudin had sent in their resignation letters to the Yang di-Pertuan Agong on June 7 and “the two judges informed the prime minister that the resignation will only take effect on a later date to enable them to resolve all pending judicial affairs”.)
“Someone said that Tan Sri Raus is on ‘garden leave’, meaning that he was instructed to stay away from work during the notice period, while still remaining on the payroll,” Hamid said. “That could be the practice in the private sector, which may even be adopted in the public sector where administrative officers are involved.”
However, such a practice was not applicable to the position of chief justice, whose powers derived from the Constitution and law. “No one, not even the PM has the power to remove them from him,” said Hamid.
He questioned if the Rulers’ Conference had been consulted on Malanjum’s appointment when it met on July 11. “What was the reason for the hurry to swear him the same night?”
He asked whether the Judicial Appointments Commission had met to make a recommendation to the prime minister. “Who chaired the meeting? Tan Sri Raus is still CJ whatever one thinks about his appointment. His appointment had not been declared void by any court. By right he should chair the meeting,” said Hamid.
Even if Raus was on leave, he should have been informed so he could chair the meeting. If Raus and Zulkefli could not chair the meeting, the next in line would be Ahmad Maarop, Chief Judge (Malaya), who was senior in protocol to Richard Malanjum as Chief Judge, Sabah and Sarawak, said Hamid.
Hamid also said that Ahmad Maarop should have been in the forefront for the post of CJ. The Chief Judges of both High Courts should have disqualified themselves from chairing or sitting in the meeting of the Judicial Appointments Commission when it considered a successor to Raus.