The Malaysian Bar intends to file a legal challenge against the appointment of Chief Justice Md Raus Sharif and Court of Appeal president Zulkefli Ahmad Makinudin.
The Bar president George Varughese said they also urge the Chief Judge of Malaya (CJM) Ahmad Maarop to advise the Yang di-Pertuan Agong to appoint retired judges as additional judges of the Federal Court specifically for this challenge.
“Surely they will be in a position of conflict of interest if either one of them were to preside over the bench which decides on the (Bar’s) legal challenge.
“In fact, we hold the view that all members of the current federal court will also be equally conflicted in presiding or deciding over such a challenge.
“Hence why we are urging the CJM to advise the Agong to appoint additional judges specifically to hear this particular matter,” Varughese said in a press conference after the Bar’s extraordinary general meeting in Kuala Lumpur today.
This is part of a resolution which was approved by a “resounding majority” in the Bar at the EGM today.
The Bar convened for the EGM today to address what it described as the “blatantly unconstitutional” appointment of Md Raus and Zulkefli as additional judges.
However, Varughese said they have yet to decide on the exact course of action.
“Whether it is going to be a judicial review or an action for quo warranto will depend on the advice of our counsel,” he said.
The Bar will initiate their legal challenge “very soon”, he added.
He also suggested that in a case of such importance such as this one, it would be preferable to have a larger panel of judges presiding over it.
“This may be an instance where perhaps you should have a panel of seven or even nine judges determining this issue, which is very important,” he said.
If Md Raus and Zulkefli were to continue to preside over cases and their appointment as additional judges is subsequently declared unconstitutional, Varughese said that it will bring the validity of those decisions made by them into question.
Motion proposed by Varughese
The motion which was approved today was proposed by Varughese himself, on behalf of the Bar to “uphold the supremacy of the federal constitution and defending the independence and integrity of the judiciary”.
Out of the 993 members who attended the EGM today, he said about less than 10 members abstained or voted against the motion.
There was a second motion, proposed by three members of the Bar, but that motion was withdrawn, he said because it was very similar to the first motion.
“The proposer agreed that the Bar should speak with one voice rather than come out with two sets of resolutions which are more or less the same,” he explained.
In the first motion, Varughese cited Article 125(1) of the constitution which stipulates that “a judge of the federal court shall hold office until he attains the age of sixty-six years or such later time, not being later than six months after he attains that age, as the Yang di-Pertuan Agong may approve”.
“There is no provision in the Federal Constitution, and it is thus unconstitutional, for a serving chief justice or a serving president of the court of appeal to continue to hold the positions of chief justice and president of the Court of Appeal beyond the prescribed age limit of 66 years and six months,” the motion read.
This resolution urging the CJM to advise the Agong on the appointment of additional judges is just one of eight resolutions contained in the approved motion.
The Bar also resolved that the appointment of Md Raus and Zulkefli as additional judges, and to continue the hold the position of chief justice and president of the Court of Appeal respectively, beyond the age limit of 66 years and six months to be unconstitutional, null and void.
It also resolved that they will not invite Md Raus and Zulkefli to their social functions for as long as they remain in office as the CJ and COA president after they attain 66 years and six months.
Members of the Bar are also encouraged to decline social invitations from them.
However, Varughese clarified that the Legal Year is considered an official function in the legal calendar and that the Bar will most likely still participate in that.
The Bar also resolves that it will no longer have confidence in the two continuing to hold their respective offices if they fail to decline the appointments.
The Prime Minister’s Office (PMO) last month announced that with Md Raus and Zulkefli’s appointment as additional judges, they will retain their existing offices for another three and two years respectively.
The PMO said the appointment of Md Raus and Zulkefli was based on the recommendation of then chief justice Arifin Zakaria who retired on March 31.
However, critics have also questioned whether Arifin had the authority to recommend additional judges for periods that had past his retirement.