THE Malaysian Bar lost its bid in the Federal Court to compel Chief Judge of Malaya Ahmad Maarop to form a special panel of retired judges to decide on the legal status of the country’s two top judges.

Justice Hassan Lah ruled today that the Federal Court does not have the power to compel such a move. He said Article 122(1)(a) provides discretion to the chief justice to advise the Agong to appoint additional judges to seat in the panel.

“No one else, not even this court, has the constitutional right to direct that discretion be exercised or not exercised or to dictate how that discretion is to be exercised,” he said in his oral judgment.

The Bar had wanted a panel of nine additional judges to decide on the constitutionality of the appointments of Raus Sharif and Zulkefli Ahmad Makinudin as chief justice and Court of Appeal president respectively.

The three-judge panel who ruled today also comprised Zaharah Ibrahim and Balia Yusof Wahi. 

Earlier today, the Bar’s lead counsel Ambiga Sreenevasan told the court that the motion called for nine persons who have held high judicial offices to be additional judges of the Federal Court, who are to be empanelled for the sole purposes of determining the constitutionality of the appointments of Raus and Zulkefli. 

She said the chief justice himself, or other Federal Court judges, could not sit on such a panel because of “a real danger of bias”.

Ambiga said in view of the importance and gravity of the constitutional issues to be decided in this case, it is appropriate for the chief judge of the High Court of Malaya to tender advice to the king to appoint the nine judges. 

“The appointment of the additional judges could avoid placing the judges of the Federal Court, Court of Appeal and the high court in the embarrassing position of adjudicating upon the constitutionality of the appointment and tenure of their superiors in the judiciary,” she said. 

The appointments are imperative in this case to preserve and enhance public confidence in the independence of the judiciary and in the administration of justice, she said.

Senior federal counsel Amarjeet Singh Serjit Singh called the Bar’s motion a “frivolous application” and an “abuse of the court process” that would undermine the public’s confidence in the judiciary. 

“The use of additional judges would give the perception to the public that the (Federal Court) judges cannot decide without fear or favour. 

“It doesn’t augur well if additional judges are appointed to decide on this issue because our judges are well able to decide on this issue.”

Zainul Rual Abu Bakar, representing the Malaysian Muslim Lawyers Association (MMLA), an intervenor, said Article 122(1)(a) is one of the rare articles that empowers the chief justice to advise the king.

“This power seems to be granted specifically the chief justice. Its power cannot be delegated to anyone else. Neither can the court give the back door to anyone else, including the nine judges,” he said.  

After today’s ruling, Bar president George Varughese told reporters that he accepts the decision that the Federal Court cannot direct the chief justice or the chief judge of Malaya. 

“We appreciated the fact that it is clarified that if in the appointment of the chief justice is in conflict, then the chief justice of Malaya can step into his shoes to advise the Yang di-Pertuan Agong,” he said. 

“We are now considering writing to the chief justice of Malaya again urging him to exercise his discretion that is within his powers to appoint additional judges to hear this matter on March 14.”

He said two letters were sent to Ahmad, but the Bar received no reply.

The Bar proposed a list of 17 retired judges in its submission, who have not commented publicly on the appointments.

They are Mohamed Dzaiddin Abdullah, Siti Norma Yaakob, Steve Shim Lip Kiong, Vadaketh Chacko George, Mahadev Shankar, Mohd Noor Ahmad, Abdul Kadir Sulaiman, Abd Aziz Mohamad, Shaik Daud Mohd Ismail, Karam Chand Vohrah, Syed Ahmad Helmy Syed Ahmad, Clement Allan Skinner, Mohamad Ariff Md Yusof, Mah Weng Kwai, Mohd Hishamudin Md Yunus, Abdul Aziz Abd Rahim and Varghese George Varughese. 

The hearing of the Malaysian Bar’s reference of constitutional questions is set on March 14.

In its originating summons filed last year, the Malaysian Bar sought a declaration that former chief justice Arifin Zakaria’s advice to the Yang di-Pertuan Agong on March 30 last year that Raus and Zulkefli be appointed as additional judges under Article 122(1A) of the federal constitution, was unconstitutional and void.

The Bar also sought declarations that Raus and Zulkefli’s appointments as chief justice on August 4 and Court of Appeal President on September 28 respectively are null and void.

Early this year, the Kuching High Court also referred to the Federal Court the Advocates Association of Sarawak’s legal challenge to the appointments. – March 2, 2018.