PETALING JAYA: An opposition MP wants a special panel of judges to be constituted to decide if the reappointments of Chief Justice Raus Sharif and Court of Appeal President Zulkefli Ahmad Makinudin are constitutional.
The panel should be made up of retired judges sworn in as additional judges for this purpose, said Ipoh Barat MP M Kulasegaran.
This, he said, would allow the dispute that had now been referred to the Federal Court to be adjudicated in a manner that would be seen as fair by all.
“Anything less will shatter public confidence in the judiciary,” the MP, who is also a lawyer, told FMT.
Last week, the High Court in Kuala Lumpur allowed the Malaysian Bar’s move to get the Federal Court to determine the validity of the appointments of Raus and Zulkefli as additional judges and to remain in their current administrative posts.
Lawyers for the Bar and government have crafted five legal questions for the Federal Court to answer if these appointments are legal.
The Bar, at its extraordinary general meeting on Aug 3, took the position that serving Federal Court judges should not hear the matter since they would be in a position of conflict of interest.
“We, therefore, call upon the Chief Judge of Malaya Ahmad Maarop to advise the king under Article 122 (1A) of the Federal Constitution to appoint persons who had held high judicial office as additional judges to rule on any legal challenge,” its president George Varughese had said.
Ahmad’s name was suggested to advise the king as Raus and Zulkefli will be in a position of conflict.
Varughese had said Ahmad could invoke Article 131A, read together with Section 9 of the Courts of Judicature Act 1964, which allows the most senior judge to exercise the powers of the chief justice during his incapacity or absence.
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.
However, some constitutional lawyers have doubts whether the Bar’s resolution could be carried out as that would be seen as “judge shopping” because the Bar is the litigant.
Meanwhile, lawyer Mohamed Haniff Khatri Abdulla said Raus could delegate the duty to another senior judge to advice the king to appoint additional judges as required under Article 122 (1A).
“That provision empowers the chief justice or any senior judge of the Federal Court to advice the king to appoint persons who have held high judicial office in Malaysia as additional judges for a specific purpose,” he said.
He said it was not fair for the public to ask for any Federal Court judge to decide on the legal issue, especially when three others also sat on the Judicial Appointments Commission that proposed names of candidates for appointments and promotions to superior courts.
They are Ahmad, Chief Judge of Sabah and Sarawak Richard Malanjum and Federal Court judge Azahar Mohamed.
Raus is chairman of the commission with Zulkefli as his deputy.
“Whatever the decision, the public has the right to expect that the process and procedures in appointing judges to decide on this issue must cross the crucial test of impartiality at the highest order,” Haniff said.
He said the public should take comfort that Prime Minister Najib Razak played no role in the appointment of additional judges.
On Oct 10, the Bar filed an originating summons to seek several declarations and named former chief justice Arifin Zakaria, Raus and Zulkefli as respondents.
The government, in a media statement, announced on July 7 that Raus would remain in office for another three years from Aug 4, while Zulkefli would remain in his post for another two years from Sept 28.
They were appointed as chief justice and Court of Appeal president on April 1 and were scheduled to retire on Aug 3 and Sept 27 respectively, upon reaching the mandatory retirement age.
Bar secretary Chan Weng Kang, who affirmed an affidavit in support of the action, said Raus and Zulkefli could not remain as chief justice and Court of Appeal president respectively beyond the retirement age.
He said Article 122 (1) of the constitution was clearly worded and an additional judge could not be appointed to an administrative post.
Chan said Article 122 (1A) stated that a candidate for additional judge must have held high judicial position in Malaysia and that the appointment must be made after retirement.
The Bar said it was also unconstitutional for Najib to participate in the decision-making process as he was currently an active litigant in several cases.