THE Malaysian Bar and the Advocates Association of Sarawak today kicked off their legal challenge against the appointments of Chief Justice Raus Sharif and Court of Appeal President Zulkefli Ahmad Makinudin.

The lawyers’ groups submitted to the Federal Court that the appointments were unconstitutional and circumvented provisions to limit the tenure of top judges to the age of 66 years and six months.

They argued that a provision allowing the reappointment to the apex court of judges past their mandatory retirement age did not apply to the top judiciary positions.

The Sabah Law Society was the amicus curiae.

Raus and Zulkefli  were appointed as additional judges in July last year, and remained in their positions past the age limit.

Raus was appointed Chief Justice on April 1 last year, and Zulkefli the Court of Appeal President three days later on April 4. 

On October 10, the Bar filed an originating summons at the Kuala Lumpur High Court against the two judges, seeking declarations that their appointments are void and unconstitutional, and orders seeking their removal from their respective offices.

Justice Hasan Lah lead today’s seven-judge panel that also comprised judges Zainun Ali, Ramly Ali, Azahar Mohamed, Zaharah Ibrahim, Balia Yusof Wahi, Aziah Ali and Alizatul Khair Osman Khairuddin.

No retired judges were appointed to hear the case, as proposed by the Bar, purportedly to avoid conflicts of interests.

Bar lead counsel Ambiga Sreenevasan made four arguments today at the Federal Court, which were that:

* Under Article 122(1A) of the Federal Constitution, an additional judge should not have been appointed by former Chief Justice Arifin Zakaria, whose advice was to take effect after his retirement. 

* An additional judge cannot be appointed as the Chief Justice or the President of the Court of Appeal, under Article 122(1A) read together with Article 122B(1), 122B(2) and Article 125(1).

* The appointments of judges by the king under Articles 122(1A) and 122B(1) is subject to trial in a court of law, or liable for a review in court.

* The appointment of Raus and Zulkefli as additional judges and thereafter of the Chief Justice and President of the Court of Appeal while they were serving judges, but to take effect after retirement of Arifin, violates Articles 122(1), 122(1A) and 125(1).

Ambiga said “a plain interpretation” of Articles 122(1A) and 122B(2) made clear that the appointments of Raus and Zulkefli could not take effect during the tenure of the subsequent chief justice of the Federal Court.

Government lawyer Amarjit Singh responded in his submission that Article 122(1A) was not “ambiguous” in empowering the chief justice to advise the king on additional judges, and that someone who is over 66 years and six months “was not a bar” to hold office as an additional judge.

“The provision provides for the appointment of any person who has held high judicial office in Malaysia as an additional judge of the Federal Court for such purposes or such period of time as specified by the chief justice,” he said.

Ambiga argued that Article 122(1) demonstrated that the office of an additional judge was a position “separate and distinct” from existing positions in the Federal Court, while 122(1A) showed that the positions of chief justice and Court of Appeal president were not to be assumed by an additional judge. 

Amarjit responded that once additional judges were appointed, “they are for all intents and purposes judges on the Federal Court, having equal powers and not of lesser mortals than the others.”

“It is submitted that whenever the post of the Chief Justice, President of the Court of Appeal and Chief Judges of the High Court fall vacant, all the judges of the Federal Court are eligible candidates to be appointed under Article 122B(1) to the said posts. 

“These include judges appointed under Article 122(1A) as upon their appointment taking effect they become judges of the Federal Court,” the government’s counsel said.

Ambiga argued that it was “accepted” that the exercising of a discretionary power conferred on the king, being a constitutional monarch, could be subject to review by the court. 

She cited, among six judgements, the decision of former Lord President Mohamed Suffian Mohamed Hashim in Merdeka University vs Government of Malaysia (1982), which held that the king’s decision could be objectively assessed by the courts. 

Amarjit responded by saying that Prime Minister Najib Razak was not involved in the appointment of additional judges: “That discretion is solely that of the chief justice and His Majesty gives effect to that advice.”

On the final question, Ambiga argued that Article 122(1A) required an additional judge to be a person who had held high judicial office, as opposed to one who was presently occupying such an office. 

Ambiga also noted a conflict between Articles 122(1A) and 125(1) in the appointment of Raus and Zulkefli as additional judges.

She said the first provided for their appointment as additional judges, but the second stated that a federal court judge could only hold office until he “attains the age of sixty-six years or such later time, not being later than six months after he attains that age”.

“However the appointments of (Raus) and (Zulkefi) as additional judges pursuant to Article 122(1A) were made and took effect before they attained the mandatory retirement age. 

“Such an appointment is prima facie contrary to Article 125(1),” she said. 

Amarjit said Raus and Zulkefli were appointed additional judges months before they were appointed as chief justice on August 4 and Court of Appeal president on September 28, respectively, and as such the appointments were not in violation of constitutional articles. – March 14, 2018.