Dismissed - Bar Council’s bid for extra judges in CJ extension lawsuit

The Bar Council’s request for a nine or 11-member bench of retired Federal Court judges to preside over their challenge against the re-appointments of Chief Justice Md Raus Sharif and Court of Appeal president Justice Zulkefli Ahmad Makinudin has been dismissed.

The Bar Council had wanted the Chief Judge of Malaya (CJM) Ahmad Maarop to exercise his discretionary powers under Article 122(1A) of the Federal Constitution to appoint the retired judges.

The Federal Court today found that while the CJM does have the discretionary powers to appoint the panel of judges, the court does not have the power to dictate how that discretion is exercised.

“No one else, not even this court, has the constitutional right to direct that discretion be exercised or not exercised or to dictate how that discretion is to be exercised,” Justice Hasan Lah, who led the three-member panel, said in reading out the judgment today.

'No response'

Bar Council president George Varughese said they appreciated that the court recognised that the CJM has the discretion to appoint additional judges in this case.

As such, he said the Bar Council intends to write another letter to the CJM urging him to exercise that discretion.

They had previously sent two letters to the CJM on this matter, he added, but received no response.

A list of 17 names of proposed retired Federal Court judges was also included in their application.

The Bar Council had filed an originating summons last October challenging the re-appointments of Justice Raus and Justice Zulkefli beyond the mandatory constitutional retirement age of 66 years and six months.

Former chief justice Arifin Zakaria was also named as a respondent in the suit.

On Dec 19, the High Court in Kuala Lumpur allowed the Bar's five questions pursuant to Section 84 of the Courts of Judicature Act. The questions allowed by Justice Azizah Nawawi are:

1. 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;
2. 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;
3. 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;
4. 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
5. 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 retirement, violates Article 122(1), 122(1A) and 125(1) of the Federal Constitution.

The next hearing for the challenge has been fixed for March 14. -Mkini