PUTRAJAYA, March 2 — The Federal Court dismissed today the Malaysian Bar’s application to hear a constitutional challenge against the continued appointment of Chief Judge Tun Md Raus Sharif and Court of Appeal Judge Tan Sri Zulkefli Ahmad Makinudin as additional judges.

The three-man Bench chaired by Tan Sri Hasan Lah ruled that the Federal Court cannot direct the Chief Judge of Malaya to exercise his discretion under Article 122 (1A) of the Federal Constitution to advise the Yang di-Pertuan Agong on the appointment of Md Raus and Zulkefli as additional judges after they have officially retired.

Article 122 (1A) states that the Chief Justice can advise the Agong to appoint an additional judge.

"For the Yang di-Pertuan Agong to be advised by the Chief Justice and even for someone to step into his shoes, under the said Article 122 (1A), is wholly discretionary.

"No one else, not even this court, has the constitutional rights to direct that discretion to exercise it or how it is to be exercised,” he said.

Following the hearing, Malaysian Bar president George Varughese told reporters that while the Chief Judge of Malaya, Tan Sri Ahmad Maarop, has the power to step into such a situation, the decision made stated it was not right for the Federal Court to direct him to exercise his powers.

He said the council will write again to urge Ahmad to exercise the discretion within his powers in appointing the additional judges.

"We had sent two letters before but we did not get a reply. Now that it has been clarified that he has the discretion, we hope he would give us a response.

"Under the given circumstances, the decision was right and we accept it. We appreciated that it was clarified that in the event whereby the Chief Justice was in a position of conflict, the Chief Judge of Malaya can step in his shoes to advise the Agong,” he said.

Varughese said the Malaysian Bar was seeking for a nine-member bench out of 17 listed names to hear the matter.

Normally a five-member of judges would sit at the Federal Court to hear cases.

The other two judges on the Federal Court panel that heard the application today were Tan Sri Zaharah Ibrahim and Datuk Seri Baliah Yusof Wahi.

The Malaysian Bar had written to Ahmad on August 21 last year on the matter, but there was no reply and it subsequently sent a reminder earlier this year.

On December 19, 2017, the High Court allowed the Malaysian Bar’s application to refer five constitutional questions concerning the validity of appointing Raus and Zulkefli as additional judges as well as Chief Justice and Court of Appeal President respectively, after they had reached the mandatory retirement age of 66 years and six months.

The Malaysian Bar had sought a declaration in its originating summons filed last year, that Tun Arifin Zakaria’s advice as the then Chief Justice to the Agong on last March 30 to appoint Raus and Zulkefli 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 August 4, last year and Court of Appeal President on September 28, last year respectively were null and void.

Earlier this year, the High Court in Kuching also referred to the Federal Court the Advocates Association of Sarawak’s legal challenge to the appointment of Raus and Zulkefli.