2 top judges: It’s academic now, says govt lawyer but others want a ruling

PUTRAJAYA: A government lawyer told a seven-member Federal Court bench that the appointments of former chief justice (CJ) Raus Sharif and Court of Appeal (COA) president Zulkefli Ahmad Makinudin last year as additional judges were constitutional.

Suzana Atan, however, said a constitutional challenge mounted by two Bar associations had now become academic as Raus and Zulkefli had resigned two months ago.

“There is no need for the bench to deliver a judgment since the judges had relinquished their posts,” she said.

The bench, led by Hasan Lah, invited all parties today to know their positions after reserving judgment for nearly six months.

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

Since then there has also been a change in the federal government following the ouster of Barisan Nasional in the historic May 9 general election.

The Malaysian Bar, which represents lawyers in the peninsula, and the Advocates Association of Sarawak (AAS) which filed a constitutional reference today took the position that the bench must deliver a ruling as the matter was not academic.

Supporting them were the Sabah Law Society which was given the status of amicus curiae (friend of the court) and former opposition leader and current prime minister Dr Mahathir Mohamad who was allowed to hold a watching brief.

The Muslim Lawyers Association, which was allowed to be an intervener, also wants a judgment, although it supports the previous government’s stand that the appointments were constitutional.

They all said a written judgment must be made available to see how the judges interpreted provisions in the constitution in making known their stands

Lawyer Ambiga Sreenivasan, representing the Bar, said the reference was still a life issue and a written judgment must be delivered.

To a question by Zaharah, who is now the Chief Judge of Malaya, Ambiga said she (Zaharah) was not in a position of conflict following the resignation of Raus and Zulkefli on July 11.

She said Zaharah would not benefit by declaring unconstitutional their appointments as both were no longer in office.

However, Suzana said Zaharah was not competent to deliver a verdict as she was now holding an administrative post following their resignations.

Lawyer Mohamed Haniff Khatri Abdulla, representing Mahathir, said a judgment would serve as guidance to present and future governments on the appointments of additional judges and whether they could hold administrative posts.

Hasan, who will retire at the end of the month, said the bench would decide what to do next as they now knew the positions of the litigants.

Zainun is scheduled to retire on Oct 4.

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

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.