Malaysian Bar loses bid to have retired judges to hear its lawsuit on CJ's appointment

PUTRAJAYA: The Malaysian Bar lost its bid for a special panel of retired judges to be appointed to hear its constitutional challenge on the validity of the appointment of the country's top two judges.
Federal Court three-man bench led by Justice Tan Sri Hasan Lah ruled that the Federal Court did not have the power to direct the Chief Judge of Malaya to advise the king to appoint additional judges to sit on the Federal Court panel to hear the Malaysian Bar's lawsuit on March 14.
He said Article 122 (1A) of the Federal Constitution gave the chief justice the sole discretion to advise the king on the appointment of additional judges.
He said Article 131 A (1) of the Constitution which allowed a 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 that discretion should be exercised or not exercised or dictate how that discretion is to be exercised," he said.
The other judges were Tan Sri Zaharah Ibrahim and Datuk Sri Balia Yusof Wahi.
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 Chief Justice Tun Md Raus Sharif and Tan Seri Zulkefli Ahmad Makinudin'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.
The Malaysian Bar subsequently filed an application seeking for at least a nine-man bench comprising retired judges to hear and determine its civil suit after it claimed that there was no reply from the Chief Judge of Malaya to its letters on the matter.
In its notice of motion, the Malaysian Bar said Raus and Zulkefli ought not to exercise their powers to empanel judges of the Federal Court to determine its lawsuit as both of them were litigants in the suit.
The Advocates Association of Sarawak (AAS) and the Sabah Law Society (SLS) supported the Malaysian Bar's application.
Early this year, the Kuching High Court also referred to the Federal Court the AAS's legal challenge to the appointment of Raus and Zulkefli.
Outside the court, Malaysian Bar president George Varughese said he accepted the decision that the court cannot direct the chief judge of Malaya and the Malaysian Bar would be writing in again to the chief judge of Malaya on this matter. — Bernama