PUTRAJAYA: The Federal Court today ruled that it had no power to direct the present chief judge of Malaya (CJM) to advice the king that a special panel of retired judges be appointed to rule on the legal status of the country’s two top judges.
A three-man bench led by Hasan Lah said under Article 122 (1A) of the Federal Constitution, it was the chief justice who had the sole discretion to advise the king to appoint additional judges.
Hasan added that Article 131A, which allowed the most senior judge to exercise the powers of the chief justice during his incapacity or absence, was only discretionary.
“No one else, not even the court, has the constitutional right to direct or dictate that discretion to be exercised,” he said in dismissing the Malaysian Bar’s motion.
Sitting with Hasan were Zaharah Ibrahim and Balia Yusof Wahi.
On Feb 23, the Bar filed a motion to compel the current CJM Ahmad Maarop to advise the king to appoint at least nine retired judges to decide whether the appointments of Chief Justice Raus Sharif and Court of Appeal President Zulkefli Ahmad Makinudin were constitutional.
The action followed the Bar’s stand adopted at its extraordinary general meeting on Aug 3 that serving Federal Court judges should not hear the matter as they would be placed in a position of conflict of interest.
Ahmad’s name was suggested to advise the king as Raus and Zulkefli will also be in a position of conflict of interest.
The High Court in Kuching had, on Jan 29, given the green light for the Advocates Association of Sarawak (AAS) to join in the Bar’s challenge. It also supported the motion.
Meanwhile, Bar president George Varughese said today Federal Court judges or additional judges could feature on the bench when the legal challenge to the appointments of Raus and Zulkefli was heard on March 14.
“The court ruling only stated that it had no power to direct the CJM. So we cannot discount the possibility of additional judges siting on the bench on March 14,” he said.
He said the Bar had written to Ahmad twice to advice the king to appoint retired judges but there was no response.
“We will write to him again in view of today’s decision to exercise his discretion,” he told reporters after following the court proceeding.
Varughese said the Bar’s position was that it would be embarrassing for Federal Court judges to adjudicate on the legal status of Raus and Zulkefli.
“We also do not want any Court of Appeal judges to be featured in the Federal Court bench as it also involves Zulkefli who is COA president,” he added.
He said such a move would invited a negative perception as Raus and Zulkefli were members of the Judicial Appointments Commission that decided on the promotion of judges.
On Oct 10, the Bar had filed an originating summons seeking several declarations and named former chief justice Arifin Zakaria, Raus, Zulkefli and the government as respondents.
The government, in a media statement, announced on July 7 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 Court of Appeal 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 Court of Appeal (COA) president respectively beyond the retirement age.