© FMT (Used by permission)
by V Anbalagan
However, the government is applying to strike out the Bar's originating summons and justice Azizah Nawawi will hear both matters on Dec 19.
KUALA LUMPUR: The Malaysian Bar, which is challenging the appointments of two senior judges, has applied for the dispute to be referred straight to the Federal Court for a decision.
Lawyer Ambiga Sreenevasan said the Bar was invoking Section 84 of the Courts of Judicature Act as there were serious constitutional issues to be determined.
Ambiga, who is assisted by Steven Thiru, said the Bar had formulated six legal questions for the High Court to refer the matter to the apex court.
“However, the government will be filing an application to strike out the Bar’s originating summons,” Steven told reporters after a case management before justice Azizah Nawawi.
The judge has fixed Dec 19 to hear the Bar’s reference application and the government’s move to annul the suit.
The six questions posed are:
Whether the advice of out–going chief justice Arifin Zakaria to the king on March 30 that the current Chief Justice Raus Sharif and Court of Appeal (COA) President Zulkefli Ahmad Makinudin be appointed additional judge is unconstitutional;Whether the advice of Arifin to Prime Minister Najib Razak that the appointment of Zulkefli as Court of Appeal (COA) President is unconstitutional;Whether the appointment of Raus as additional judge as announced on July 7when he was still a serving judge is unconstitutional;Whether the appointment of Raus as chief justice from Aug 4 after he attained the mandatory retirement age of 66 years and six months is unconstitutional;Whether the appointment of Zulkefli as additional judge, as announced on July 7 when he was still a serving judge, is unconstitutional; andWhether the appointment of Zulekfli as COA president from Sept 28, after he attained the mandatory retirement age, is unconstitutional.
On Oct 10, the Bar filed the originating summons to seek several declarations and named Arifin, Raus and Zulkefli as respondents.
The government had earlier announced, in a media statement, 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.
They were appointed as chief justice and COA president on April 1 and were scheduled to retire on Aug 3 and Sept 27 respectively, upon reaching the mandatory retirement age.
Bar secretary Chan Weng Kang, who affirmed an affidavit in support of the action, said Raus and Zulkefli could not remain as chief justice and COA president respectively beyond the retirement age.
Chan said a candidate for additional judge must have held high judicial position in Malaysia and the appointment must be for exceptional circumstances to deal with exigencies.
He said Article 122 (1) of the Federal Constitution was clearly worded and an additional judge could not be appointed to an administrative post.
“It is impossible to construe Article 122 (1A), however strained the interpretation may be, to mean an additional judge can be an office bearer,” he said,
He said Article 124 (4) stated that a person taking the oath on becoming a Federal Court judge (which would include an additional judge), should do so in the presence of the chief justice and this indicated that they were meant to be different individuals.
Chan said it was also unconstitutional for the prime minister to participate in the decision–making process as he was currently an active litigant in several cases.
He said Arifin could not suggest a prospective appointment of Raus and Zulkelfli when they were still in office.