PETALING JAYA: Chief Justice (CJ) Raus Sharif and Court of Appeal (COA) president Zulkefli Ahmad Makinudin should cease performing their judicial functions pending a seven-member bench’s decision on whether their appointments are constitutional, lawyers said.
Alternatively, they say the nation’s top two judges should only feature to dispose of appeals and leave applications with four other judges who were not among the seven who heard the legal challenge filed by the Malaysian Bar (Bar) and the Advocates Association of Sarawak (AAS).
The lawyers said Raus and Zulkefli were litigants as they were respondents in the suits which were heard on Wednesday.
Federal Court judge Hasan Lah led the seven-member panel and others in the bench were Zainun Ali, Ramly Ali, Zaharah Ibrahim, Balia Yusof Wahi, Aziah Ali and Alizatul Khair Osman Khairuddin.
The bench has reserved judgment.
Lawyer R Kengadharan said it was improper for Raus and Zulkefli to feature in the Federal Court with their subordinates as the public demand a high standard in the administration of justice.
It will be good if the CJ can be seen to demonstrate the highest accountability and transparency,” he told FMT.
Kengadharan said it was only proper they cease to sit until the decision by the panel of seven.
He said this in response to Raus who chaired a five-member bench to dispose of a commercial case on Thursday with Chief Judge of Malaya Ahmad Maarop, Hasan, Zainun and Aziah featuring in the panel.
The bench unanimously dismissed the appeal after hearing arguments.
Empanelling of Federal Court judges is done by the Chief Justice unless in exceptional circumstances.
Before hearing the Bar and AAS’s suits, Hasan also revealed to all parties that it was Ahmad (Chief Judge of Malaya) who empanelled the bench instead of Raus.
Lawyer Mohamed Haniff Khatri Abdulla said technically and legally Raus and Zulkefl were litigants before the seven judges.
“Until judgment is delivered, it is quite wrong for any of the seven to be lined with Raus or Zulkefli to hear cases,” he said.
Haniff said the primary rule is that there must be no room for perception of bias and conflict of interest.
He said under normal circumstances a litigant, even unofficially, could not communicate with a judge who had heard the person’s case.
“What more, in their official capacities as CJ and COA when they have an interest in the outcome of the judgment,” he said.
According to Haniff, the public and lawyers, as officers of the court, would want the seven-member panel to deliberate the legal challenge properly and adequately to avoid any unnecessary embarassment within the four walls of the court.
Lawyer Syed Iskandar Syed Jaafar Al Mahdzar suggested that Raus could appear on the bench with Zulkefli, Ahmad, Chief Judge of Sabah and Sarawak Richard Malanjum, Federal Court judge Azahar Mohamed and additional judge Jeffrey Tan Kok Hwa.
“It is not good for public perception for Raus and Zulkefli to sit with any of the seven judges because they have to interpret the constitution to arrive at a decision whether their appointments conform with the law,” he said.
Syed Iskandar said it was okay if the disposal of cases for the time being in the apex court was slow as the CJ had limited options in empanelling corams and there must not be room for any suspicion.
“Both Raus and Zulkefli should not lead any panel that has any association with any of the seven judges as it could also lead to complications,” he said, adding that dissatisfied parties could file for reviews on grounds of coram failure.
Syed Iskandar expressed hope Hasan’s bench would deliberate and deliver their much awaited judgment within the shortest time possible.
“The present conundrum must be put to a quick end or else the judiciary will be severely battered,” he said.
On hindsight, Syed Iskandar said the Bar’s request to have retired judges to hear the case was a wise move and would not have put all the apex court judges in an awkward position.
Lawyer SN Nair , however, said he found no conflict even if Raus and Zulkefli were lined up with some of the judges who heard their case.
“It is the duty of every judge to act and adjudicate on the evidence presented without fear or favour,” he said.
Nair said although it may seem odd for any of the seven judges to sit with Raus and Zulkefli, they (the seven) were bound by their judicial oath.
“Therefore, we have to assume the judges will act independently and honestly.”