Sabah lawyers: Judges’ exit avoids potential ‘embarrassment’ with peer ruling

Ida Lim
Md Raus (pic) and Zulkefli voluntarily tendered their resignation to the Yang di-Pertuan Agong on June 7. ― Malay Mail pic

KUALA LUMPUR, June 13 — The resignation of the country’s two top judges amid lawsuits challenging their appointments is a “pragmatic” move that could prevent the potential “embarrassment” of their peers ruling on the validity of their positions, the Sabah Law Society (SLS) said today.

SLS president Brenndon Keith Soh said the professional body which represents all Sabah lawyers “respects and commends” Chief Justice Tun Md Raus Sharif and President of the Court of Appeal Tan Sri Zulkefli Ahmad Makinudin for their decision to voluntarily tender their resignation to the Yang di-Pertuan Agong on June 7.

He said that the duo’s resignation — which was announced today to take effect on July 31 — took place before the Federal Court’s pending decision in court challenges on their appointments.

“Therefore the decision to resign before the judgment of the Federal Court provides a pragmatic solution to the current controversy surrounding their appointment as additional judges continuing to hold office as Chief Justice of the Federal Court and President of the Court of Appeal respectively.

“It further removes the potential embarrassment of the Federal Court judges having to determine the legality of their appointments against their fellow judges,” he said in a statement to Malay Mail.

“Notwithstanding that the SLS has the utmost of faith and respect in the institution of the Federal Court to deliver its decision on the legitimacy of the aforesaid appointments, it appears that the matter before the Federal Court has become academic,” he added.

When asked further, Soh indicated that it will now be up to the Federal Court to decide if it felt it was still necessary to deliver a decision in this case.

“I would say it is for the court to decide after hearing representations from the parties who were involved in the proceedings before the Federal Court. After deliberating, the Federal Court could decide that the matter is academic,” he told Malay Mail.

SLS is an amicus curiae or friend of the court in a constitutional challenge by the Advocates’ Association of Sarawak (AAS) against Raus’ and Zulkefli’s appointments, which was heard together by the Federal Court on March 14 with a similar court challenge by the Malaysian Bar.

Soh explained that the SLS did not file a separate lawsuit due to there being already at least two similar court challenges by the AAS and the Malaysian Bar then, noting that the SLS could still voice similar concerns from the different platform of amicus curiae.

“The SLS filed submissions and aired its views — that the appointments were unconstitutional — before the Federal Court on 14.03.2018. All three Bars in Malaysia have submitted the issue to the Federal Court,” Soh said, with the Federal Court then reserving its judgment to be delivered at a later date.

Soh confirmed that no date has been fixed yet for the Federal Court’s decision in this court challenge.

Vacancies? No worries

Soh said SLS “is of the view that there is no shortage of suitably qualified and experienced judges available in the judiciary to fill the impending vacancies for the Chief Justice of the Federal Court and President of the Court of Appeal”.

“Furthermore, it would appear that there is no impediment for the retirement to take place earlier than the reported date of 31.07.2018. It is therefore hoped that the successors to these key positions in the judiciary will be appointed promptly upon the retirement of the former office bearers,” he said.

He also touched on the positive outcomes if the two positions are vacated earlier, telling Malay Mail: “Leaving earlier would mean that the successors for the positions are appointed sooner. This would also avoid prolonging the controversy surrounding the initial appointments.”

Earlier today, Malay Mail contacted Malaysian Bar president George Varughese, who said he expects to issue a press statement later today. The Malaysian Bar is the professional body for lawyers in Peninsular Malaysia.

Malay Mail has yet to receive a response from the Advocates’ Association of Sarawak, which represents lawyers in Sarawak.

Earlier today, former Court of Appeal judge Datuk Mah Weng Kwai had also said that pending court challenges against the validity of Raus’ and Zulkefli’s positions should be withdrawn since the subject matter of the lawsuits have now become academic.

Lawyer Ramkarpal Singh had however said the resignations do not make the Federal Court’s pending decision “academic”, arguing that it is “necessary for a judicial pronouncement to be made as to the legality of such appointments in order to avoid a repetition of same in the future”.