PUTRAJAYA, Sept 13 — The government has taken the stand that the appointment of former Chief Justice Tun Raus Sharif and former Court of Appeal President Tan Sri Zulkefli Ahmad Makinudin as additional judges was constitutional, the Federal Court was told today.
Senior federal counsel Suzana Atan, therefore, informed the Federal Court seven-man bench that it (Federal Court) need not give its decision on the constitutional challenge brought by the Malaysian Bar and the Advocates Association of Sarawak (AAS) over the validity of the former top two judges’ appointment as the matter was academic since both of them had relinquished their posts in July this year.
“It is still our stand that they (Raus and Zulkefli) were constitutionally appointed,” she said.
Suzana also said that Tan Sri Zaharah Ibrahim was not competent to deliver a ruling on the matter because she was now holding the post of Chief Judge of Malaya and was in a conflict position.
Apart from Justice Zaharah, the bench also comprised Federal Court judges Tan Sri Hasan Lah, Tan Sri Zainun Ali, Tan Sri Ramly Ali, Datuk Seri Balia Yusof Wahi, Tan Sri Aziah Ali and Datuk Alizatul Khair Osman Khairuddin.
Justice Hasan who chaired the bench said the court wanted to seek the parties’ positions today since both Raus and Zulkefli had left the service.
The bench on March 14 this year had reserved the court’s decision on the constitutional challenge after hearing submissions from all parties.
The Malaysian Bar and AAS were given the nod by the High Court to refer five constitutional questions to the Federal Court to determine the validity of Raus and Zulkefli’s appointment as additional judges to extend their tenure as Chief Justice and Court of Appeal President respectively after they reached their retirement age.
Lawyer Datuk S. Ambiga representing the Malaysian Bar told the court that the Bar took the position that the matter was not academic and it was an important and live issue for the Federal Court to decide.
She also said that Justice Zaharah was competent to make a ruling on the constitutionality of Raus and Zulkefli’s appointment as additional judges because she would not benefit from the ruling.
AAS, intervener Muslim Lawyers Association Malaysia and the Sabah Law Society (SLS) who appeared as amicus curiae and lawyer Mohamed Haniff Khatri Abdulla, who is holding watching brief for Prime Minister Tun Dr Mahathir Mohamad, took the same stand as the Malaysian Bar.
Muslim Lawyers Association counsel Adzly Ab Manas said although the appointment of the two former top judges was constitutional, the association still wanted the court to deliver its judgment as the matter was not academic.
Mohamed Haniff Khatri said judgment on the matter must be delivered by the court for guidance of the present and future government.
After all parties indicated their positions, Justice Hasan said they would decide what to do and adjourned the matter.
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 a declaration 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.
The Kuching High Court also referred to the Federal Court the AAS legal challenge to the appointment of Raus and Zulkefli.
On July 7, last year, the previous government announced that Raus would remain in office for another three years from August 4, while Zulkefli would remain in his post for another two years from September 28.
Raus and Zulkefli submitted their letters of resignation to the Yang di-Pertuan Agong on June 7 this year and the Yang di-Pertuan Agong had given his assent to their resignation on June 8.
On June 13, the Chief Registrar’s Office issued a statement that Raus and Zulkefli would resign on July 31 after completing their judicial duties. — Bernama