PETALING JAYA: Dr Mahathir Mohamad’s lawyer has urged the king to seek an opinion from the Federal Court to determine if appointing the two top judicial officers as additional judges to remain in their administrative posts is valid.
Mohamed Haniff Khatri Abdulla said the Yang di-Pertuan Agong could rely on Article 130 of the Federal Constitution to obtain a binding legal opinion from the court.
“The king can refer a question for opinion to the court on any provision in the constitution which has arisen or likely to arise,” he told FMT.
That provision states the court shall pronounce its opinion in open court.
Haniff said this in response to contrary views expressed by the legal fraternity on the announcement made by the Prime Minister’s office on Friday that Chief Justice Raus Sharif and Court of Appeal president Zulkefli Ahmad Makinudin would be made as additional judges to remain in their current positions.
The lawyer said either Chief Judge of Malaya Ahmad Maarop or Chief Judge of Sabah and Sarawak Richard Malanjum should chair an enlarged bench since it was an important constitutional issue.
“Raus and Zulkefli cannot be on the bench as they are the subject matter of the constitutional controversy,” he said.
Haniff also took the view that Raus and Zulkefli could not remain in their current positions by becoming additional judges after retirement.
He said Article 122 (1) of the constitution stated the composition of the Federal Court shall consist of a Chief Justice, Court of Appeal President, Chief
Judge of Malaya, Chief Judge of Sabah and Sarawak, 11 Federal Court judges and such additional judges appointed by the king.
“It is clear that the chief justice and the Court of Appeal president cannot remain in their positions by doubling up as additional judges after retirement,” he said.
Haniff said only a new chief justice could recommend to the king to make Raus and Zulkefli as additional judges for their return to the bench.
Earlier today, senior lawyer Jagjit Singh concurred with Umno lawyer Muhammad Shafee Abdullah in stating that the appointments of Raus and Zulkefli as additional judges are valid.
He said the appointments would take effect after their retirement and as such were constitutional.
On Friday, the prime minister’s office announced that Raus would continue to hold his position for another three years from Aug 4 while Zulkefli would also have his appointment extended for another two years from Sept 28.
Raus is scheduled to retire on Aug 3 and Zulkefli on Sept 27 after attaining the age of 66 years and six months, the maximum retirement age for judges.
The statement added that under Article 122B(1) of the Federal Constitution, the appointments for these posts were made by the Yang di-Pertuan Agong, on the advice of the prime minister and after consultation with the Conference of Rulers.
The statement also said the appointments of Raus and Zulkefli as additional judges were based on the suggestion and advice of former chief justice Arifin Zakaria to the king on March 30 before he retired.
“The proposal and advice were accepted by the Yang di-Pertuan Agong in accordance with Article 122(1A) of the Federal Constitution,” it said.
Article 122 (1A) of the Federal Constitution states that the Yang di-Pertuan Agong, on the advice of the chief justice, may appoint any person who “has held high judicial office in Malaysia” for a specific period or purpose.
Former chief justice Abdul Hamid Mohamad had publicly advised that a further extension to Raus’ tenure would be unconstitutional.
Similar opinions were expressed by former Federal Court judge Gopal Sri Ram, former de facto law minister Zaid Ibrahim and current Malaysian Bar president George Varughese.