7 serving judges to decide if appointments of top 2 judges valid

Zulkefli Ahmad Makinudin and Raus Sharif were scheduled to retire upon reaching the mandatory retirement age of 66 plus six months.

PUTRAJAYA: Federal Court judge Hasan Lah is leading a seven- member bench to decide whether the appointments of Chief Justice (CJ) Raus Sharif and Court of Appeal (COA) president Zulkefli Ahmad Makinudin as additional judges is constitutional.

They will also decide whether the duo should remain in their administrative posts.

The other six judges on the bench are Zainun Ali, Ramly Ali, Zaharah Ibrahim, Balia Yusof Wahi, Aziah Ali and Alizatul Khair Osman Khairuddin.

The Malaysian Bar had hoped for retired judges to hear the dispute, having written to the Chief Judge of Malaya Ahmad Maarop to advise the king to appoint ex-judicial officers who have held high judicial office to be made additional judges to hear the case.

The Bar and the Advocates Association of Sarawak (AAS) are spearheading the legal challenge, with the Sabah Law Society and former prime minister Dr Mahathir Mohamad being allowed to hold a watching brief.

The Muslim Lawyers Association, which has been allowed to be intervener, is supporting the government’s stand that the appointments are constitutional.

On Oct 10, the Bar filed an originating summons seeking several declarations, naming former chief justice Arifin Zakaria, Raus, Zulkefli and the government as respondents.

On Dec 19, the High Court in Kuala Lumpur allowed the Bar’s move to get the Federal Court to determine the validity of the appointments of Raus and Zulkefli as additional judges and subsequently remain in their current administrative posts.

The High Court in Kuching had, on Jan 29, given the green light for AAS to join the Bar’s challenge.

The four legal questions posed before the judges are:

* Whether an additional judge can be appointed on the advice of the chief justice, such that the appointment takes effect after the latter’s retirement;

* Whether, under Article 122 (1A) of the Federal Constitution, read together with Articles 122 (B1), 122 (B2) and 125, an additional judge can be made CJ and COA;

* Whether the appointment of judges by the king under Article 122 (1A) and Article 122 (B) is justiciable; and

* Whether the appointments of additional judge, and thereafter of the CJ and COA president, announced while they were serving judges but to take effect after their retirement, violates Articles 122 (1), 122 (1A) and 125 (1).

Former chief justice Arifin Zakaria had advised the king to appoint Raus and Zulkelfi as additional judges a day before his retirement on March 31.

They 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 plus six months.

The government, however, 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.

Bar secretary Chan Weng Kang, who affirmed an affidavit in support of the action challenging the appointments, said Raus and Zulkefli could not remain as CJ and COA president beyond the retirement age.

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