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Lawyer: CJ Raus must explain his questionable judicial appointment

 | December 7, 2017

Leave must be given to the applicant as the legal challenge is not mounted against the king and prime minister in making the appointment, says Hanipa Maidin

hanipaKUALA LUMPUR: The nation’s top judge Raus Sharif should explain in court under what authority he is holding the post of additional judge and chief justice after his mandatory retirement, a lawyer said.

Hanipa Maidin said his client, Amanah assistant secretary Abang Ahmad Kerdee Abang Masagus, was not challenging the authority of the king and the prime minister in appointing Raus.

“Our quo warranto is directed towards Raus whose appointment is being questioned as unconstitutional, he told reporters as he briefed them on the salient points of his submission to Justice Azizah Nawawi today.

A quo warranto (Medieval Latin for “by what warrant?”) is a prerogative writ requiring the person to whom it is directed to show what authority he has for exercising some right or power he claims to hold.

The lawyer said the High Court in 2009 gave leave and allowed the then Perak menteri besar Mohammad Nizar Jamaluddin a declaration that his successor Zambry Abdul Kadir’s appointment by the Perak ruler was unconstitutional.

Hanipa said Nizar had also filed a quo warranto declaration and the High Court held Zambry’s appointment as illegal.

(The Federal Court finally declared Zambry was rightfully appointed but the quo warranto mode of action was not challenged).

Hanipa said leave for judicial review by Abang Ahmad should be granted as he had an arguable case.

The government has filed three grounds to deny Abang Ahmad leave for the court to hear the merit of the case.

It said the quo warranto remedy sought was not appropriate in Raus’ case.

Further, it said Abang Ahmad had no sufficient interest to bring this action against Raus and that it was beyond the court’s jurisdiction to hear and decide the dispute.

Hanipa said the court was the right forum as Raus’ appointment would touch on many constitutional issues.

“This civil court is also a constitutional court to determine issues that affect the supreme law of the land,” he said.

He said Abang Ahmad, as a citizen of Malaysia, had the legal standing to come to court to seek an interpretation on the Federal Constitution.

Government lawyers Suzana Atan and Shamsul Bolhassan represented Raus.

Azizah will deliver her ruling on Dec 14.

On Nov 1, Abang Ahmad filed an application to obtain a declaration that Raus’ appointment as additional judge, and remaining as chief justice after retirement, was unlawful.

Abang Ahmad wants a declaration that Raus’ appointment as additional judge, under Article 122 (1A) of the constitution, is null and void.

Abang Ahmad also wants a declaration that Raus’ continued service as chief justice is illegal under Article 125.

On July 7, the government announced in a media statement that Raus would remain in office for another three years from Aug 4, while Court of Appeal (COA) President Zulkefli Ahmad Makinudin would remain in that post for another two years from Sept 28.

Both were appointed as CJ and COA president on April 1 and were scheduled to retire on Aug 3 and Sept 27 respectively upon reaching the mandatory retirement age of 66 years plus six months.

Abang Ahmad said Raus could only hold the position of chief justice if he was a Federal Court judge, but one who had yet to attain the retirement age.

He said he was advised by his lawyer that Raus could not be appointed again to lead the judiciary by being made additional judge.

 


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