Apex court to decide if appointments of ex-top judges valid

PUTRAJAYA: The Federal Court will deliver on Monday the much-awaited ruling on whether the appointments of former chief justice Raus Sharif and Court of Appeal president Zulkefli Ahmad Makinudin as additional judges last year were constitutional.

Lawyer Farez Jinnah said he received a letter from the Federal Court registry last Friday announcing that a seven-member bench would deliver its judgment.

This came a day after the bench, chaired by Hasan Lah, invited all parties to the action to give their opinion on whether a judgment should be delivered.

The bench had reserved judgment after hearing submissions on March 14.

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

Hasan is due to retire on Sept 26 and Zainun on Oct 4.

Government lawyer Suzana Atan recently said the constitutional challenge mounted by two Bar associations had become academic following the resignations of Raus and Zulkefli two months ago.

However, the Malaysian Bar representing lawyers in the peninsula and the Advocates Association of Sarawak (AAS) which had filed a constitutional reference disagreed, saying the bench must deliver a ruling.

They were supported by 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 called for 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.

The Bar and the AAS maintained that Raus and Zulkefli could not remain as chief justice and Court of Appeal president beyond the retirement age.

On Oct 10, the Bar filed an originating summons seeking several declarations, naming Raus, Zulkefli, former chief justice Arifin Zakaria 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 to remain in their administrative posts.

The AAS joined the Bar’s challenge after receiving the green light from the High Court in Kuching on Jan 29.

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 chief justice and Court of Appeal president;
  • 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 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 Zulkefli as additional judges a day before his retirement on March 31 last year.

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

However, the previous government 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.