Judiciary’s independence affected if Chief Justice’s appointment upheld, court told

By Ida Lim
Ambiga expressed hope that the EC would respect the court, and not do anything to override its powers, since the decision has now been fixed for April 11. — Picture by Shafwan Zaidon

PUTRAJAYA, March 14 — The judiciary’s independence will be affected if the Federal Court decides that the appointment of the country’s two top judges beyond their mandatory retirement age is valid and constitutional, the Malaysian Bar’s lawyer said today.

Datuk Ambiga Sreenevasan, a lawyer for the Malaysian Bar in the legal body’s lawsuit challenging the top two judges’ appointments, told the Federal Court to consider the impact if the apex court were to uphold last year’s appointment of the Chief Justice and the Court of Appeal president.

She summed up the “far-reaching” consequences expected, including the mandatory retirement age in the Federal Constitution becoming “meaningless” and the promotion of judges being affected.

“And it affects the independence of the judiciary because it affects security of tenure,” she told the Federal Court.

Ambiga was referring to the Malaysian Bar’s argument that the appointment of Tun Md Raus Sharif and Tan Sri Zulkefli Ahmad Makinudin as “additional judges” of the Federal Court for three years and two years respectively would affect judicial independence, as such appointments are for varying and unfixed periods.

The Malaysian Bar contrasted this to the usual appointment of Federal Court judges, where the maximum retirement age of 66 years old and an additional six months would ensure judges know that their positions are secure until they hit that age.

She said it was not a “happy task” for those involved in the lawsuit and for the Federal Court panel hearing it, but said upholding the Federal Constitution is a burden that the judges have to shoulder.

“Unfortunately the burden is on the judiciary...to ensure compliance with the Federal Constitution. The outcome here will reverberate long after we are over.

“It has already affected the judiciary, it will continue to affect the judges coming up through the judiciary,” she said.

The hearing of four questions of law posed by the Malaysian Bar in its challenge of the top two judges’ appointment concluded today, with the Federal Court to deliver its decision on a date to be fixed later.

The seven-man panel today was headed by Tan Sri Hasan Lah and composed of Tan Sri Zainun Ali, Tan Sri Ramly Ali, Tan Sri Zaharah Ibrahim, Datuk Seri Balia Yusof Wahi, Tan Sri Aziah Ali and Datuk Alizatul Khair Osman Khairuddin.

On October 10, 2017, the Malaysian Bar filed a lawsuit against Chief Justice Raus and his immediate predecessor Tun Arifin Zakaria, Court of Appeal president Zulkefli, and the Malaysian government.

The Malaysian Bar had sought various court orders, including declarations that the appointment of Raus and Zulkefli as additional judges and their subsequent appointments as Chief Justice and Court of Appeal president are “unconstitutional and void”.

In the Malaysian Bar’s lawsuit, the Muslim Lawyers Association of Malaysia is intervener. Lawyers held a watching brief for Tun Dr Mahathir Mohamad, who had last year filed two separate lawsuits to push for the cancellation of the two judges’ appointment.

The Malaysian Bar’s lawsuit was heard together with a similar court challenge by Ranbir Singh Sangha, who sued on behalf of the Advocates Association of Sarawak.

Ranbir adopted the arguments presented by the Malaysian Bar.

The Sabah Law Society appeared as an amicus curiae or friend of the court in Ranbir’s case.