No restriction on additional judge being appointed as Chief Justice, court told

PUTRAJAYA: The Federal Constitution does not restrict additional judges from being appointed as Chief Justice or Court of Appeal President, a seven-man bench of the Federal Court heard yesterday.

Senior federal counsel Datuk Amarjeet Singh submitted that if the post of Chief Justice, President of Court of Appeal or Chief Judge was vacant, all judges of the Federal Court including additional judges were eligible to be appointed to the top posts.

He said an additional judge once appointed under the Federal Constitution is a judge of the Federal Court. He said Tun Md Raus Sharif and Tan Sri Zulkefli Ahmad Makinudin’s appointments as the Chief Justice and Court of Appeal President respectively were constitutional.

Amarjeet said Article 122 (1A) of the Federal Constitution also allows a retiring Chief Justice to advise the King that the incoming Chief Justice and the President of Court of Appeal, whose tenure would be ending in a few months’ time, to be appointed as additional judges immediately upon their retirement for a specified duration of time. He was submitting before the bench chaired by Federal Court judge Tan Sri Hasan Lah in the hearing of the constitutional challenge brought by the Malaysian Bar and the Advocates Association of Sarawak (AAS) over the validity of the appointments of the country’s top two judges.

Amarjeet who was representing the government, former Chief Justice Tun Arifin Zakaria, Raus and Zulkefli, also contended that the Prime Minister was not involved in the appointments of additional judges.

He said the discretion to appoint additional judges solely lay with the Chief Justice and the King gave effect to the advice by the Chief Justice.

Earlier, the Malaysian Bar’s lawyer Datuk S. Ambiga argued that the Chief Justice’s tenure ends at his retirement age of 66 years and six months and it cannot be extended by appointing him as additional judge for him to continue to hold the post.

She said for the Chief Justice to continue his tenure after his retirement age is by amendment of the Federal Constitution to extend the judges’ retirement age to 70 years.

She said the extension of Raus and Zulkefli’s tenures violated the principle of judicial independence.

“If a former Chief Justice of the Federal Court is permitted to decide on the appointment of a future additional judge prospectively, then this would be tantamount to by-passing the authority of the sitting Chief Justice of the Federal Court who would naturally be more aware of the existing needs of the judiciary,” said Ambiga.

After hearing submissions from parties, Justice Hasan deferred to another date to deliver the court’s decision on the matter.

Presiding with him were Justices Tan Sri Zainun Ali, Tan Sri Ramly Ali, Tan Sri Zaharah Ibrahim, Datuk Seri Balia Yusof Wahi, Tan Sri Aziah Ali and Datuk Alizatul Khair Osman Khairuddin.

On Dec 19, last year, the High Court in Kuala Lumpur allowed the Malaysian Bar’s application to refer five constitutional questions concerning the validity of Raus and Zulkefli’s appointments as additional judges and as Chief Justice and Court of Appeal President respectively after they had attained the mandatory retirement age of 66 years and six months.

In its originating summons filed last year, the Malaysian Bar sought a declaration that Tun Arifin Zakaria’s advice as the Chief Justice at the material time, 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 Malaysian Bar also sought declarations that Raus and Zulkefli’s appointment as chief justice on Aug 4, last year and Court of Appeal President on Sept 28, last year respectively were null and void.

Early this year, the Kuching High Court also referred to the Federal Court the AAS’s legal challenge on the appointment of Raus and Zulkefli. — Bernama