Bar: Federal Court failed in duty by declining to rule on reappointment of 2 retired judges

The apex court held that the matter had become academic as then chief justice Raus Sharif (right) and Court of Appeal president Zulkefli Ahmad Makinudin had resigned.

PUTRAJAYA: The Malaysian Bar today once again expressed its disappointment with the Federal Court bench which last year declined to rule if the reappointment of two retired senior judges was constitutional.

Its president, George Varughese, said the six-member apex court bench dismissed the constitutional references by the Bar and Advocates Association of Sarawak (AAS) by refusing to answer the legal questions posed on the grounds that the matter had become academic as the judges had resigned.

“The Malaysian Bar believes it was a missed opportunity not to consider four questions it raised which were constitutionally important and concerned the administration of justice,” he said in his speech at the opening of the legal year here.

Varughese said the law did not operate in a vacuum and therefore the interpretation of the provisions of the Federal Constitution could never be academic.

He said a well-reasoned interpretation could have provided clarity to this issue and could have been relied upon in on-going appeals in both the Court of Appeal and the Federal Court where decisions delivered by the then-chief justice Raus Sharif and Court of Appeal president Zulkefli Ahmad Makinudin were being challenged.

On Sept 24, then Federal Court judge Zainun Ali delivered a unanimous decision that the matter was now academic since Raus and Zulkefli had resigned from office in July.

“It is not tenable to answer the questions as the court will not act in a vacuum,” said Zainun, who left office in November.

The Bar and the AAS had sought the court’s legal opinion on whether the tenure of Raus and Zulkelfi could be extended by making them additional judges.

Varughese also called upon the judiciary to be bold and independent in their decisions and to make it standard practice for all courts to give reasons when delivering judgments.

“Such judgments should at least consist of broad grounds to inform aggrieved parties of the reasons behind their judicial outcomes,” he said.

Retired judges and lawyers have complained that the quality of judgments had generally declined and written grounds were delivered behind schedule and have delayed the appeal process.

Varughese said the Bar wanted the government to demonstrate full commitment to its election manifesto by abolishing oppressive laws such as the Sedition Act 1948, the Prevention of Terrorism Act 2015, the Prevention of Crime Act 1959, and the Security Offences (Special Measures) Act 2012 without delay.

“These laws, among others, contained draconian provisions of preventive detention and ouster clauses,” he said, adding that the legislative landscape need not be a time capsule of the country’s regressive colonial past.

He said these laws ought to be repealed as existing laws were sufficient to address the threats of crime and terrorism.