PETALING JAYA: Dr Mahathir Mohamad’s lawyer has urged Court of Appeal president Zulkefli Ahmad Makinudin to defer taking his judicial oath to remain in office pending the outcome of a legal challenge by his client.
Mohamed Haniff Khatri Abdulla said in the meantime, the most senior Court of Appeal judge could step in to carry out the duties and functions of Zulkefli.
“Since there is a constitutional challenge on the appointment of Chief Justice Raus Sharif, we humbly call upon the Court of Appeal president to defer his oath taking ceremony pending a court ruling,” Haniff said in a blog posting.
He said any ruling in Raus’ matter would bind Zulkefli as the facts and law were similar.
Haniff said this in response to Zulkefli who received his appointment letter from the king in Istana Negara on Saturday.
The lawyers said under Article 124 (2A), of the Federal Constitution, the Court of Appeal president must take the judicial oath of office before the most senior judge.
Haniff said Article 131A(2) also allowed the senior judge to carry out the responsibilities of Zulkefli in the event of a vacancy or inability to act.
The government on July 7 announced that Raus would remain in office for another three years from Aug 4 while Zulkefli for another two years from Sept 28.
Both were scheduled to retire on Aug 3 and Sept 27 respectively upon reaching the mandatory retirement age of 66 years plus six months.
Mahathir’s judicial review application to challenge the appointment of Raus has been fixed for Oct 20.
On Aug 9, Mahathir sought legal redress to revoke the Chief Justice’s appointment and stop him from carrying out his judicial and administrative duties.
The former prime minister filed a leave application for judicial review in the Kuala Lumpur High Court to compel Prime Minister Najib Razak to advise the king to revoke Raus’ appointment as additional judge and chief justice.
Mahathir named Najib, the government and Raus as respondents.
The action was filed after Raus had received his instrument of office and taken his oath of office as chief justice before the king on Aug 4 despite calls by the legal fraternity to reconsider the appointments.
Mahathir, who served as prime minister from 1981 to 2003, said Article 125 of the Federal Constitution did not allow the appointment of a chief justice beyond the retirement age.
He said Article 122 (1A) did not allow a chief justice to advise the king to appoint a candidate who had yet to retire from the judiciary to be made an additional judge at a later date.
Retired chief justice Zaki Azmi, who argued that the appointments were valid, said the provision for additional judges was 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.
Attorney-General Mohamed Apandi Ali had also said that the appointments of Raus and Zulkefli were according to the constitution.