Mahathir granted watching brief in Bar's CJ challenge

Former prime minister Dr Mahathir Mohamad, whose application to challenge the top two posts in the judiciary was struck out by the High Court three months ago, has now been allowed to hold a watching brief in the March 2 Malaysian Bar proceeding in the Federal Court.

This was disclosed by Mahathir's lawyer Mohd Haniff Khatri Abdulla during case management of the Malaysian Bar and the Advocates Association of Sarawak (AAS) cases before the Federal Court today.

The Malaysian Bar is seeking a nine-to-11-member bench of retired Federal Court judges to hear its challenge against the appointments of Chief Justice Md Raus Sharif and Court of Appeal President Justice Zulkefli Ahmad Makinudin beyond the mandatory constitutional retirement age of 66 years and six months.

Haniff said: "We wrote a letter to the Federal Court last month, after the Malaysian Bar obtained a referral of their case last December.

"We have received a response from the office of the Chief Justice for us to be allowed watching brief and not as amicus cuarea (friend of the court), or a party in the application.

"Hence, we will be there for Tun (Mahathir) to observe as we are also appealing the High Court decision."

Mahathir filed separate applications against Chief Justice Md Raus (right in photo) and Court of Appeal President Zulkefli Ahmad (on left) last August and September, but the applications were struck out by the High Court in November.

Today, the Malaysian Bar filed a motion before the apex court to formally ask Chief Judge of Malaya Justice Ahmad Ma'arop to appoint at least nine to 11 retired Federal Court judges to hear the case. The hearing on whether to allow the application has been fixed for March 2.

This is for the application to challenge the controversial appointments of Justice Md Raus and Justice Zulkefli beyond the constitutionally mandated retirement age of 66 years and six months.

Lawyer Farez Jinnah, who appeared for the Malaysian Bar, confirmed with reporters that the motion was filed this morning when case management was heard before the apex court deputy registrar, Jumirah Marjuki.

The Bar had named former CJ Arifin Zakaria, Justice Md Raus, Justice Zulkefli  and the government as respondents to the application.

AAS president Ranbir Singh Sangha also named the same four as respondents.

Five questions posed to court

The Malaysian Bar stated last week that it intended to file a motion for Justice Ahmad to appoint a special panel of nine to 11 retired Federal Court judges to hear their challenge on the appointments of Justice Md Raus and Justice Zulkefli by posing five questions.

The five questions posed are:

• 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;
   
• Whether under Article 122B(2) of the Federal Constitution, the president of the Court of Appeal can be appointed upon the prime minister consulting the chief justice, whose appointment is to take effect after the retirement of the said chief justice;
   
• Whether under Article 122(1A), read together with Article 122B(1), 122B(2) and Article 125(1) of the Federal Constitution, an additional judge can be appointed as the chief justice or the president of the Court of Appeal;
   
• Whether the appointments of judges by the Yang di-Pertuan Agong under Articles 122(1A) and 122(1) of the Federal Constitution are justiciable; and
   
• Whether the appointment of additional judges, and thereafter of the chief justice and the president of the Court of Appeal, announced whilst they were serving judges but to take effect after their retirement, violates Article 122(1), 122(1A) and 125(1) of the Federal Constitution.

It is learnt that Persatuan Peguam Muslim Malaysia has been approved to be an intervener in this application.- Mkini