KOTA KINABALU: The High Court here today dismissed an application for leave for judicial review on the appointment or continuation of Md Raus Sharif as the chief justice of Malaysia on Aug 5.
The court also dismissed an application by lawyer Marcel Jude MS Joseph to declare that the individual who should rightfully be appointed as the chief justice after Aug 5 is Richard Malanjum, the current chief judge of Sabah and Sarawak.
The application was dismissed with a cost of RM3,000 awarded to Md Raus as the sole respondent.
The suit was filed before the court on Sept 26 when Marcel sought an order of certiorari to quash Raus’ appointment as the chief justice, or continuing in the position, from Aug 5.
The key issue before the High Court sitting was to review whether the appointment or continuation of Raus’ service was lawful and constitutional, or whether it contravened Article 121(1) of the Federal Constitution regarding the coordinate jurisdiction of the High Court of Sabah and Sarawak and the High Court of Malaya.
When contacted, Marcel said despite the dismissal he still hoped Malanjum would eventually be made the chief justice of Malaysia.
“We in Borneo have not had a chief justice (of Malaysia) from among us even though we are courts of coordinate jurisdiction.
“I made this appeal as a member of the Bar in Sabah to Prime Minister Najib Razak and with utmost respect to the Council of Rulers and the King to do their utmost to fulfil this right of the people of Borneo in Malaysia,” he said.
Marcel, a Parti Solidariti Tanah Airku (Star) member, added that the issue of whether the Sabah and Sarawak High Court was truly equal in stature to the Malaya High Court must be resolved as soon as possible.
“This has been an outstanding issue for 54 years. This question must be answered,” he said.
He said the issue of Raus being retained had been a prickly subject for Sabahans and Sarawakians, and been heavily politicised particularly by opposition parties, since it was announced in July.
Bandar Kuching MP Chong Chieng Jen and Sandakan MP Stephen Wong have both questioned whether the reappointment meant that judges from the Borneo states, despite their seniority, were inferior or of lesser status than judges from West Malaysia.
The MPs were referring to Malanjum who was elevated to the post of chief judge of Sabah and Sarawak in 2006, which made him more senior than Raus who was only appointed to the Federal Court in 2009.
Raus’ extension for another three years until 2020 has also been viewed as unconstitutional by the Malaysian Bar, specifically when there were other Federal Court judges who were equally capable of filling the post.
Parti Warisan Sabah Deputy President Darell Leiking said Malanjum might have been overlooked because of his reputation as an impartial judge.
“This could land Putrajaya in trouble over issues of compliance with the Malaysia Agreement 1963,” he had said in July.
Three days ago, the Malaysian Bar filed an action to seek a declaration that the advice by the then outgoing chief justice Arifin Zakaria to the Yang diPertuan Agong on March 30 that Raus and Court of Appeal (COA) president Zulkefli Ahmad Makinuddin be appointed as additional judges under Article 122(1A) of the Federal Constitution, was unconstitutional.
The Bar also sought declarations that the appointments of Raus and Zulkelfi in the respective positions were unconstitutional and that they should be removed from office.