Only Chief Justice Raus Sharif can decide whether retired or serving Federal Court judges should be appointed to adjudicate this matter, but how will serving judges handle the conflict between fair play and career advancement, ask lawyers.
PUTRAJAYA: Senior lawyers prefer retired judges to decide the legal status of the nation’s two top judicial officers who, under normal circumstances, would have left the bench after their mandatory retirement.
One said the bench was faced with a “judicial and legal impasse”. Another took note of public perception of the judiciary and the dilemma faced by judges in determining the fate of Chief Justice Raus Sharif and Court of Appeal president Zulkefli Ahmad Makinudin.
Lawyer SN Nair said there appeared to be some sort of a deadlock on who should sit to adjudicate a matter of constitutional importance.
He said a Federal Court bench had ruled that it could not order anyone to step into the shoes of the chief justice to advise the king to appoint a panel of retired judges to try Raus and Zulkefli.
“To my mind, that is a correct decision because there is no provision in the Federal Constitution for the court to make such an order,” he said.
Moreover, Nair said, the executive had no role in directing the judiciary to break this “judicial and legal impasse”.
Nair said it was clear that only the chief justice could advise the king on the appointment of additional judges or direct another senior judge to perform that duty.
“The chief justice may be in conflict but it is within his power whether to appoint additional judges or empanel existing Federal Court judges,” he said.
Nair said the fixing of the coram in the Federal Court was in the hands of the chief justice although it was not an absolute power, as opined by four senior Indian retired judges in a recent judicial crisis in that country.
“However, we are not bound by that opinion as it is merely persuasive,” he said.
Nair said this in response to whether retired judges or sitting Federal Court judges should feature on the bench when the apex court meets next week to deliberate on the appointments of Raus and Zulkefli.
He said perhaps the chief justice might find it proper to issue a statement on his intention under what circumstances the hearing would proceed on March 14 as both the appointments were of public interest.
The Federal Court, in dismissing the Malaysian Bar’s motion last Friday, said the bench could not direct Chief Judge of Malaya Ahmad Maarop to exercise the chief justice’s discretion under Article 122 (1A) of the Federal Constitution to advise the king to appoint retired judges to decide whether the appointments of Raus and Zulkefli were legal.
The bench, chaired by Hasan Lah, said Ahmad could step in to perform the function under Article 122 (1A), provided Raus delegated that power.
“No one else, not even the court, has the constitutional right to direct or dictate that discretion to be exercised,” Hasan said.
Ahmad’s name was suggested to advise the king as Raus and Zulkefli will be in a position of conflict of interest.
On Oct 10, the Bar had filed an originating summons seeking several declarations and named former chief justice Arifin Zakaria, Raus, Zulkefli and the government as respondents.
The government, in a media statement, announced on July 7 that Raus would remain in office for another three years from Aug 4, while Zulkefli would remain in his post for another two years from Sept 28.
Touching on the issue, lawyer R Kengadharan said serving Federal Court judges should not decide on Raus and Zulkefli’s position because of conflict of interest and as both were their superiors.
“The entire proceedings will be tainted whichever way the ruling is made,” he said, adding that any outcome must be based on fair grounds.
Kengadharan said this case should disallow any room for negative public perception of judges and the judiciary because politicians would capitalise on the matter.
The lawyer, who was once a detainee of the now repealed Internal Security Act, said he feared this judicial crisis would prolong indefinitely and it would further erode public confidence in the judiciary.
Lawyer Syed Iskandar Syed Jaafar Al-Mahdzar, who is on the same page with Kengadharan on this matter, said incumbent Federal Court or even Court of Appeal judges would be in a dilemma between doing justice and their career advancement.
“As judges, they are supposed to uphold their oath of office to preserve, protect and defend the constitution. Will they act without fear or favour?”
Syed Iskandar said dissatisfied parties appearing in the Federal Court would attempt to revisit the ruling (that the appointments were unconstitutional) by filing review applications.
He hoped the March 14 hearing date would be vacated so that preparations could be made to appoint a bench of credible retired judges as additional judges for the specific purpose of deciding whether the appointments were in line with the spirit of the constitution.
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