Judgment reserved on Bar challenge

Court panel argues Constitution does not prohibit judges’ appointment

A seven-man Bench of the Federal Court has reserved its judgment on the challenge brought by the Malaysian Bar and the Advocates Association of Sarawak (AAS) on the appointments of the nation’s two top judges.

The panel, chaired by Justice Hasan Lah, reserved its decision after hearing submissions by senior federal counsel Datuk Amarjeet Singh and the Bar’s lawyer Datuk S. Ambiga.

The Bar and the AAS are challenging the appointment of Chief Justice Tun Md Raus Sharif and Court of Appeal President Tan Sri Zulkifli Ahmad Makinudin after they reached the constitutional mandatory retirement age of 66 years and six months. The duo were appointed as additional judges before they assumed the top posts.

He argued that the Federal Constitution did not prohibit additional judges from being appointed as Chief Justice or the Court of Appeal President.

Amarjeet Singh said whenever the post of Chief Justice, Court of Appeal President and Chief Judges of the High Court fell vacant, all the Federal Court judges were eligible candidates to be appointed under Article 122B(1) of the Constitution to the said posts.

He said this included judges appointed under Article 122(1A) as upon their appointment taking effect, they become Federal Court judges.

He said the amendments to Clause (1) of Article 122 expanded the constitution of the Federal Court by increasing the number of fixed judges and when necessary by appointing additional judges.

Article 124(4) is wider than how the plaintiff (Bar) construed the provision. Amarjeet Singh was acting for former Chief Justice Tun Arifin Zakaria, Md Raus, Zulkifli and the Government.

Meanwhile, Ambiga argued that the extension of Md Raus’ and Zulkefli’s tenures have violated the judicial independence principle. Ambiga said it could not be extended by appointing him as additional judge.

In the legal challenge, the Bar and AAS have posed four points of law for determination by the Federal Court. One of the questions posed is whether under Article 122(1A) of the Federal Constitution an additional judge can be appointed on the advice of the Chief Justice, whose advice is to take effect after the latter’s retirement.

Another question asked is whether the appointments of judges by the Yang Di-Pertuan Agong under Articles 122(1A) amd 122B(1) of the Federal Constitution is justiciable.