PUTRAJAYA: The Malaysian Bar today urged a seven-member Federal Court bench to consider the wide ramifications if it was to uphold as constitutional the appointments of Chief Justice (CJ) Raus Sharif and Court of Appeal (CoA) president Zulkefli Ahmad Makinudin as additional judges.
Lawyer Ambiga Sreenevasan said the mandatory retirement age of judges at 66 years old plus six months would become meaningless.
“Judges’ promotions will be affected. It will open the floodgates where a decision of an outgoing CJ will bind the incoming CJ. Where does this end?” she asked at the end of her submission.
Ambiga, who is also a former Bar president, said the appointments of Raus and Zulkefli would affect the independence of the judiciary because it touched on the security of tenure.
In fact, she said their appointments had already affected other judges and even the people.
“The consequences are far-reaching and it is a burdensome task (for the seven judges). However, the onus is on the judiciary to show compliance to the Federal Constitution,” she said.
Ambiga said the outcome would reverberate for a long time to come.
“Justice must be done though the heavens fall,” she told the bench led by Hasan Lah, when urging them to rule that the appointments of Raus and Zulkefli as additional judges and holding their administrative posts was unconstitutional.
Sabah Law Society (SLS), which is given the status of amicus curiae (friend of the court), said the appointments of the nation’s top two judges was a second round of extension.
SLS lawyer Roger Chin said Raus and Zulkefli got an extension of six months after reaching the age 66 years last year.
“The purpose of appointing additional judges under Article 122 (1A) is not to hold any administrative post in the judiciary,” he said, adding that SLS’s stand was that a proper interpretation must be given to provisions in the constitution to declare their appointments as invalid.
Counsel Alwin Leong, who was assisted by Chin, said that additional judges were contract judges and had no security of tenure unlike regular Federal Court judges.
“Additional judges are not on a par with ordinary Federal Court judges. Please do not allow the constitution to be abused,” he told the bench.
Earlier, in outlining the Bar’s case, Ambiga said a judge’s security of tenure was an integral part of the basic structure and judicial independence under Article 125.
“One must not do anything to undermine that provision (Article 125) or it will come meaningless,” she said.
She said all judges enjoyed security of tenure by retiring at 66, plus another six months, if the king approved the extension.
Ambiga said ordinary judges were appointed by the king, acting on the advice of the prime minister, after consulting the Conference of Rulers, as stated under Article 122B.
However, additional judges did not enjoy security of tenure and were appointed by the king on the advice of the Chief Justice for a specific purpose or a period of time.
Lawyer Steven Thiru, who appeared with Ambiga, said the appointments of Raus and Zulkefli were unconstitutional as they were both recommended by the then out-going chief justice Arifin Zakaria when both were still serving judges.
He said Article 122 (1A) only stated that any person who has held high judicial office in Malaysia could be made an additional judge.
Government lawyer Amarjeet Singh argued that the constitution must be given a wide interpretation and that the appointments were legal.
He said the government’s media statement on July 7 made it clear that Raus and Zulkefli would be made additional judges “after each of them” reached the age of 66 and six months.
“They are therefore eligible to continue as CJ and COA president because they took office soon after retirement,” he said.
Amarjeet said their appointments could not be questioned in court because the king, as a constitutional monarch, had also accepted the advice of the prime minister.
Lawyer Muhammad Shafee Abdullah, who appeared for the Muslim Lawyers Association as intervener, supported Amarjeet’s submission and went on to say the status of additional judges was not inferior to regular judges.
He said Article 122 (1A) did not explicitly declare that additional judges could not hold an administrative post in the judiciary.
“Additional judges to the Federal Court have security of tenure, only that it varies. In the present case, Raus was given three years while Zulkefli’s tenure was for two years,” he said.
He said the provision for additional judge was provided in the constitution to continue keeping talented and experienced judicial officers on the bench.
The Federal Court has reserved judgment.