PETALING JAYA: Lawsuits to challenge the retention of Malaysia’s two top judicial officials in their administrative posts can be heard together in the Federal Court although the action will come from two separate legal territories, a constitutional lawyer said.
Bastian Pius Vendargon said the suits could be case managed before High Court judges in Kuching, Kota Kinabalu and Kuala Lumpur, and then referred to the apex court.
“The legal challenge could be heard together because it is a common issue,” he told FMT.
Vendargon said this in response to the unprecedented mandate given by lawyers to the peninsula-based Malaysian Bar, the Advocates Association of Sarawak (AAS) and the Sabah Law Society (SLS) to commence legal proceedings on the constitutionality of the appointments of Raus Sharif as Chief Justice and Court of Appeal president Zulkefli Ahmad Makinudin.
The Malaysian Bar obtained the mandate from members on Aug 3, the AAS on Aug 26 and the SLS on Aug 28.
Under the Federal Constitution, the Malaysian Bar comes under the jurisdiction of the High Court of Malaya while the AAS and SLS are under the High Court of Sabah and Sarawak.
Vendargon said he believed the three parties would rely on section 84 of the Courts of Judicature Act 1964 to alert the High Court judges to refer their cases straight to the Federal Court as the appointments of Raus and Zulkefli affect a number of provisions in the constitution.
Lawyers who attended the Malaysian Bar’s extraordinary general meeting and the AAS’ extraordinary delegates conference also wanted the constitutionality of the appointments of the duo to be determined by a special panel of retired Federal Court judges.
However, the position taken on this by lawyers in Sabah is unclear.
Raus reached the mandatory retirement age of 66 years and six months on Aug 3, while Zulkefli will turn that age on Sept 27.
However, the government announced on July 7 that Raus’ tenure as chief justice will be extended for another three years by making him an additional judge from Aug 4.
Zulkefli, too, will remain as Court of Appeal president for another two years by being made an additional judge from Sept 28.
In a press conference on Aug 5, a day after he was sworn in again as chief justice, Raus defended his reappointment, saying that although the move was unprecedented everything was done according to the law.
He said it was best for the courts to decide since there were two conflicting views on the matter.
Lawyers and retired judges have argued that the constitution does not allow additional judges to double up as holders of administrative positions.
Retired chief justice Zaki Azmi, who argued that the appointments were valid, said the provision for additional judges were utilised as Raus and Zulkefli had only been in their positions since April 1.
Further, he said a constitutional provision that allowed judges to remain in office up to 66 years of age plus six months of extension was archaic compared with other Commonwealth countries.
The Malaysian Bar, in an overwhelming majority took a no-confidence vote against Raus and Zulkefli and also obtained a mandate to begin a legal challenge against the two.
The Bar also decided that it would not invite Raus and Zulkefli to any social function while members are also encouraged to decline social invitations from them, or inviting them.
Its president George Varughese said the Bar also agreed that serving Federal Court judges should not hear the matter since they would be placed in a conflict of interest position.
The Malaysian Bar called upon the Chief Judge of Malaya Ahmad Maarop to advise the king under Article 122 (1A) of the constitution to appoint persons who had held high judicial office as additional judges for the sole purpose of hearing and determining the said legal challenge.
He said due to the disability of Raus and Zulkefli, Ahmad, as the next most senior judge in the judiciary, could step in to exercise the powers of the chief justice and advise the king.
It is unclear whether the Bar has filed its action against the judges but former prime minister Dr Mahathir Mohamad has filed a judicial review application which is scheduled to be heard on Oct 24.