Federal Court seeks clarification on ex-top judges’ appointments

The Federal Court to decide whether the appointments of former chief justice Raus Sharif (right) and Court of Appeal president Zulkefli Ahmad Makinudin as additional judges was constitutional. (Bernama pix)

PUTRAJAYA: A seven-member Federal Court bench has invited parties to clarify whether the appointments of former chief justice Raus Sharif and Court of Appeal (COA) president Zulkefli Ahmad Makinudin as additional judges were constitutional, a lawyer said.

Farez Jinnah, whose firm acts for the Malaysian Bar, said he received a letter today from the Federal Court registry to appear before the bench on Sept 13 at 2.30pm.

“The bench wants to seek clarification and we will make all preparations to assist them,” he told FMT.

On March 14, the bench, led by judge Hasan Lah, adjourned after hearing submissions from lawyers representing the Bar and the Advocates Association of Sarawak (AAS), which spearheaded the constitutional reference.

The peninsula-based Bar and AAS maintained that Raus and Zulkefli could not remain as CJ and COA president beyond the retirement age.

Raus and Zulkefli have since resigned from their positions, effective July 11.

The Sabah Law Society was given the status of amicus curiae (friend of the court) while the then opposition leader and current prime minister Dr Mahathir Mohamad was allowed to hold a watching brief.

The Muslim Lawyers Association, which was allowed to be an intervener, supported the previous government’s stand that the appointments were constitutional.

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

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

On Dec 19, the High Court in Kuala Lumpur allowed the Bar to refer questions to the Federal Court to determine the validity of the appointments of Raus and Zulkefli as additional judges and subsequently remain in their 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 as additional judges, 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).

Arifin had advised the king to appoint Raus and Zulkefli as additional judges a day before his retirement on March 31.

They were appointed as chief justice and COA president on April 1 last year and were to retire on Aug 3 and Sept 27 respectively upon reaching the mandatory retirement age of 66 plus six months.

The previous 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.