Tough road ahead for Bar challenge against chief justice

Bede Hong

Malaysian Bar president George Varughese (second from right) at a press conference after its extraordinary general meeting in Kuala Lumpur yesterday. The Bar intends to file a legal challenge against Chief Justice Raus Sharif’s term extension. – The Malaysian Insight pic by Nazir Sufari, August 4, 2017.

DESPITE a strong mandate from Malaysian Bar members to mount a challenge, the legal journey to overturn Chief Justice Raus Sharif’s term extension will be fraught with conflict-of-interest challenges, said constitutional experts.

Raus is due to be officially sworn in tonight as an additional judge and remain as the chief justice, a day after the Bar voted overwhelmingly at an emergency general meeting (EGM) in support of a no-confidence motion against Raus’ and Court of Appeal president Zuklefli Ahmad Makinudin’s term extensions.

The Bar intends to file a legal challenge which may come by way of a judicial review or a writ, to force Raus to abstain from his duties.

Constitutional expert Shad Saleem Faruqi said the move is unprecedented.

“It’s never been done before and the challenge is a slippery slope. Impossible issues are involved,” said Shad, a professor of law at Universiti Malaya.

Bar president George Varughese said yesterday the Bar will seek retired judges or other Federal Court judges to preside over its legal challenge against Raus.

The bar will also request the Chief Judge of Malaya Ahmad Maarop to advise the Yang di-Pertuan Agong under Article 122 (1A) of the federal constitution to appoint persons who have held high judicial office as additional judges for the sole purpose of hearing and determining the challenge.

One possibility is that Ahmad could invoke Article 131A, which may allow him as the most senior judge to take over the role of an incapacitated or absent chief justice.

Additionally, instead of the usual panel of five judges, the Bar may seek seven judges to hear its case.

But Shad said this could be difficult in reality.

“A special panel of retired judges appointed under Article 122 (1A) may not work. Many of the retired judges are disqualified because they have uttered partisan views or taken political stand. 

“Who will recommend their appointment? Only the chief justice can under Article 122 (1A). There again the issue of bias will arise,” he said. 

“Cases normally begin in the High Court, then they move by way of appeal to the higher court. So, hoping to have one panel adjudicate it finally is not easy to achieve,” said Shad, who also holds the Tunku Abdul Rahman chair as professor of constitutional law.

One possibility, he said, is that Article 130 could be employed for a direct advisory opinion of the Federal Court on a reference by the Agong.

“But the Yang di-Pertuan Agong acts on advice, and the prime minister won’t advise,” he said.

Meanwhile, Malaysian Bar constitutional law committee co-chairman Surendra Ananth said Raus could choose not to get involved in the appointment of retired judges by following Article 131A.

Article 131A, with Section 9 of the Courts of Judicature Act 1964, would allow the next highest-ranked judge to exercise powers of the chief justice “owing to illness or absence from Malaysian or any other cause”. 

“The phrase ‘any other cause’ leaves the possibilities open and can cover a scenario like this. However, I still think the CJ has to make that call.

“In this scenario, he cannot advise the Agong to appoint additional judges to hear a case involving him directly, and that such power must be exercised by the Chief Judge of Malaya. 

“I don’t think the Chief Judge of Malaya can directly advice the Agong without the chief justice saying first saying he cannot advise, which he should if the situation arises.”

“It’s definitely not an easy road for the Bar, but it must be taken regardless,” said Surendra.

The appointment of Raus and Zulkefli as additional judges in the Federal Court will extend their tenures by three and two years respectively. Their names were proposed to the Agong by former chief justice Arifin Zakaria before he retired in March and the announcement on the extensions was made by the Prime Minister’s Office on July 7.

Raus was originally slated to resign yesterday, August 3, having reached the age of 66 years and six months, the term limit for a Federal Court judge. Zulkefli was originally set to retire on September 27. – August 4, 2017.

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