PUTRAJAYA, Sept 24 — The Federal Court today dismissed an application by the Malaysian Bar and the Advocates Association of Sarawak (AAS) to refer four constitutional questions over the legality of the appointment of former Chief Justice Tun Raus Sharif and former Court of Appeal President Tan Sri Zulkefli Ahmad Makinudin as additional judges, ruling that the issue has become academic.
Judge Tan Sri Zainun Ali, who read out the judgment, said the court agreed with the submission of the Attorney-General Chambers’s that the issues in the motion were academic and that a judgment need not be issued by the Federal Court.
“We reiterate the view that it is not the function of the courts to decide hypothetical questions which do not impact on the parties before them.
“Shorn of the legal rhetoric, the fundamental purpose of the application was to ensure that Raus and Zulkefli, whose appointments had been alleged to be unconstitutional, were to be removed from their position or for them to vacate their positions with immediate effect,” she said.
Zainun also said that the legal construction of the questions posed was specifically in that factual context but, as mentioned before, Raus and Zulkefli had since relinquished their posts.
“And since matters have changed irrevocably by reason of their resignation, it is no longer tenable for this court to answer the questions posed because the factual substratum underlying the questions no longer exists. Therefore, this court does not act in vain,” she said.
Also on the bench, chaired by Tan Sri Hasan Lah, were Tan Sri Ramly Ali, Datuk Sri Balia Yusof Wahi, Tan Sri Aziah Ali and Datuk Alizatul Khair Osman Khairuddin.
Earlier, Zainun said the Chief Judge of Malaya Tan Sri Zaharah Ibrahim, who had initially been on the bench, withdrew herself due to conflict of interest and to maintain public confidence since she was appointed as the Chief Judge of Malaya soon after Raus and Zulkefli’s resignation.
The Malaysian Bar and AAS were given the nod by the High Court to refer four constitutional questions to the Federal Court to ascertain the validity of Raus and Zulkefli’s appointments as additional judges to extend their tenure as the Chief Justice and the Court of Appeal President, respectively, after they reached retirement age.
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 the Chief Justice on Aug 4 last year and Court of Appeal President on Sept 28 last year, respectively, was 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 Aug 4 last year while Zulkefli would remain in his post for another two years, from Sept 28 last year.
Raus and Zulkefli submitted their letters of resignation to the Yang di-Pertuan Agong on June 7 this year. The King gave his assent to their resignation on the following day.
On June 13 this year, the Chief Registrar’s Office issued a statement that Raus and Zulkefli would resign on July 31 after completing their judicial duties.
Meanwhile, Malaysian Bar president George Varughese said it respected the decision of the Federal Court although it was disappointed.
“The four questions before the Federal Court are of constitutional importance, concerning the administration of justice. These are ‘live’ and substantive issues for the determination of the Federal Court whose interpretation is relevant and could be relied upon in the future,” he said in a statement after the Federal Court six-man bench delivered its decision today.
Varughese said the issues also fell under the domain of public law and should be determined as a matter of significant public interest.
“The constitutional questions raised concern matters relating to the appointments of Raus and Zulkefli, who were both leaders of the judicial branch of the government, entrusted with the supreme duty of determining the constitutionality of laws passed by the legislative branch and the legality of decisions made by the executive branch,” he said.
Varughese said this decision may also invariably lead to uncertainty as to the current position of the law, when the vital nature of the appointments of the Chief Justice and the President of the Court of Appeal under the Federal Constitution and the role and duties of the Chief Justice could have been clarified by the Federal Court.
“There is now the risk that there could be more controversial appointments of this nature in future, which we maintain are wholly unconstitutional,” he said, adding that they were also disappointed that the judges did not seize the opportunity to determine issues which were of considerable constitutional and public importance. — Bernama
