PETALING JAYA: A senior lawyer has urged Attorney-General (AG) Tommy Thomas to withdraw the position of the previous Barisan Nasional government that the appointments of Chief Justice Raus Sharif and Court of Appeal president Zulkefli Ahmad Makinudin as additional judges are constitutional.
Baljit Sidhu said Thomas could review the submissions made by government lawyer Amarjeet Singh in opposing the constitutional references by the Malaysian Bar and the Sarawak Advocates Association (SAA) on the appointments.
“Thomas could withdraw from the earlier position taken by the Attorney-General’s Chambers and support the stands of the Bar and SAA,” he told FMT.
He said this could be done as the Federal Court, which heard submissions on March 14, had yet to deliver its ruling.
“The apex court is not functus officio as it has yet to deliver its ruling,” he added.
Thomas was appointed as AG on Tuesday, replacing Mohamed Apandi Ali following Pakatan Harapan’s victory in the May 9 polls.
The AG is the chief legal adviser to the government.
A seven-man bench chaired by Hasan Lah is expected to decide whether Raus and Zulkefli should remain in their administrative posts.
The Bar and the SAA are spearheading the legal challenge against this, with the Sabah Law Society and Dr Mahathir Mohamad allowed to hold a watching brief.
The Muslim Lawyers Association, meanwhile, has been allowed to act as intervener, supporting the stand that the appointments are constitutional.
The Bar had filed an originating summons on Oct 10, seeking several declarations and naming former chief justice Arifin Zakaria, Raus, Zulkefli and the then-government as respondents.
On Dec 19, the Kuala Lumpur High Court allowed the Bar’s move to get the Federal Court to determine the validity of Raus and Zulkefli’s appointments as additional judges and for them to remain in their current administrative posts.
On Jan 29, the High Court in Kuching gave the green light for SAA to join the Bar’s challenge.
The four legal questions posed before the judges were:
- 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 chief justice and Court of Appeal president;
- Whether the appointment of judges by the king under Article 122 (1A) and Article 122 (B) can be subject to challenge in court; and
- Whether the appointment of additional judges, and thereafter of the chief justice and Court of Appeal president, announced while they were serving judges but to take effect after their retirement, violates Articles 122 (1), 122 (1A) and 125 (1).
Arifin had advised the king to appoint Raus and Zulkelfi as additional judges a day before his retirement on March 31.
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 of 66 plus six months.
On July 7, however, the government announced 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.
Last week, Mahathir’s appeal to declare the appointments of Raus and Zulkefli as unconstitutional was vacated pending the outcome of the Federal Court ruling.
Mahathir had filed two judicial reviews separately in August and September, seeking to compel Najib Razak to advise the king to revoke the appointments of Raus and Zulkefli.
Mahathir named Najib, the government, Raus and Zulkefli as respondents.
In the applications, he said the two should be barred from performing their judicial and administrative functions as their appointments were unconstitutional.