PETALING JAYA: More than two months after lawyers at an extraordinary general meeting agreed that all steps deemed appropriate must be taken against the unconstitutional appointments of two senior judges, the Malaysian Bar has finally acted on the matter.
It has filed an action to seek several declarations and named former chief justice Arifin Zakaria, chief justice Raus Sharif and Court of Appeal (COA) president Zulkefli Ahmad Makinuddin as parties.
It wants a declaration that the advice by the then out-going chief justice Arifin to the king on March 30 that Raus and Zulkefli be appointed as additional judges under Article 122(1A) of the Federal Constitution was unconstitutional.
Other declarations sought in the originating summons sighted by FMT are that the appointments of Raus and Zulkelfi as CJ and COA president respectively were unconstitutional and they should be removed from office.
FMT understands the court papers were filed last week but only served on the trio over the last two days.
A case management has been fixed on Oct 26.
Bar secretary Chan Weng Keng, who affirmed an affidavit in support of the action, said the Malaysian Bar wants the high court to refer the constitutional issues to the federal court.
On July 7, the government announced in a media statement that Raus would remain in office for another three years from Aug 4, while Zulkefli 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.
Chan said Raus and Zulkefli could not remain as CJ and COA respectively beyond the retirement age.
Retracing the legal history, Chan said in June 1965, the constitution was amended to include the appointment of an additional judge for the federal court.
Chan said the candidate for additional judge must have held high judicial position in Malaysia and the appointment must be for exceptional circumstances to deal with exigencies.
He said the federal court currently consisted of 11 judges and four others who held administrative posts.
Chan said Article 122 (1) was clearly worded and an additional judge could not be appointed to an administrative post.
“It is impossible to construe Article 122 (1A), however strained or stretched the interpretation may be, to mean an additional judge can be an office bearer,” he said,
He said Article 124 (4) stated that a person taking the oath on becoming a federal court judge (which would include an additional judge), should do so in the presence of the chief justice and this indicated that they were meant to be different individuals.
He said the content in the media statement on Raus and Zulkefli’s appointments were made before both had retired from office and it was unconstitutional.
Chan said it was also unconstitutional for the prime minister to participate in the decision-making process as he was currently an active litigant in several cases.
He said Arifin could not suggest a prospective appointment of Raus and Zulkelfli when they were still in office.
Chan said Raus and Zulkefli had conducted themselves in a manner which had brought disrepute to their offices as judges.
On Aug 3, 993 members who attended the Malaysian Bar EGM voted in a resounding majority that the appointments of Raus and Zulkefli were unconstitutional.
Pakatan Harapan (PH) chairman Dr Mahathir Mohamad and Sabah-based lawyer Marcel Jude MS Joseph had also filed a judicial review to revoke Raus and Zulkefli’s appointments and stop them from carrying out their judicial and administrative duties.