Retired Federal Court judge Gopal Sri Ram said there are capable judges to take over the position of chief justice should Md Raus Sharif retire as the country's top judicial officer.

“We must not forget that we have extremely capable successors in Chief Judge of Malaya Ahmad Ma'arop, Chief Judge of Sabah and Sarawak Richard Malanjum and Federal Court judge Hasan Lah.

“If any of their terms will be brief, then the post can go to Federal Court judges Zainun Ali, Zaharah Ibrahim or Aziah Ali. If the government defies the constitutional and legal restraints and proceeds (to extend Justice Raus' tenure), then it will sow the wind but reap the whirlwind,” Sri Ram warned.

He said this when asked about a report in The Malaysian Insight today that the tenure of Justice Raus and inspector-general of police Khalid Abu Bakar are expected to be extended up to two years to ensure continuity, as BN under Prime Minister Najib Abdul Razak faces the 14th general election.

Justice Raus (photo) is entering the third month of his six-month service extension period after attaining the age of 66 in February.

Sri Ram said extending the tenure of Khalid may not pose a problem as the only matter would be on placing him on a contract for the period prescribed under the Treasury's instructions.

However, he said, extending the tenure of the chief justice is quite another matter.

“Under the Federal Constitution, the maximum term a CJ or any other judge of the Federal Court may serve is only up to 66 years, plus the six-month extension. In fact that applies to all judges,” he added.

This is stipulated in Article 125(1) of the Federal Constitution.

Sri Ram said two things may happen if the chief justice is given the two-year extension.

"Firstly, it will undermine the judiciary. Secondly and more importantly, the extension may be challenged, causing embarrassment to the incumbent (Justice Raus). That must be avoided at all costs,” he warned.

Increase the age of retirement

Sri Ram also opined that a chief justice cannot be appointed as an additional judge, and then be re-appointed as CJ.

This, he said, is due to Articles 122(1) and (1A) of the constitution.

At present, the other additional judge who had retired but was re-appointed to sit in the Federal Court is Justice Jeffrey Tan Kok Wha.

Sri Ram argued that the only way to have Justice Raus extend his tenure would be to amend the Federal Constitution to increase the age of retirement of all judges.

“But as a matter of practical reality this may not be possible as the government of the day lacks the majority (two thirds) required by Article 159 to amend the constitution,” he said.

Sri Ram's view is shared by former United Nations Special Rapporteur on the Independence of Judges and Lawyers, Param Cumaraswamy.

“I have heard about this rumour (about Justice Raus) but I do not think it can happen, constitutionally,” Param, the former Malaysian Bar president, told Malaysiakini.

“This follows the constitution that a judge can hold office until he is 66 and be given six months of extension."