The Malaysian Bar was given the green light today to pose five out of six constitutional questions to the Federal Court regarding the controversial appointments of Chief Justice Md Raus Sharif and Court of Appeal president Zulkefli Ahmad Makinudin past the mandatory retirement age of 66 years and six months.

This was after Justice Azizah Nawawi of the High Court in Kuala Lumpur allowed the Bar's application to pose the questions to the apex court.

The Attorney-General's Chambers did not object to the application by the Bar. Instead, it posed one of the questions and rephrased some of the earlier questions by the Bar.

The five questions to be referred to the Federal Court pursuant to Section 84 of Courts of Judicature Act are:

  1. Whether under Article 122(1A) of the Federal Constitution an additional judge can be appointed on the advice of the chief justice, which advice is to take effect after the latter’s retirement?
     
  2. Whether under Article 122B(2) of the Federal Constitution the president of the Court of Appeal can be appointed upon the prime minister consulting the chief justice, which appointment is to take effect after the retirement of the said chief justice?
     
  3. Whether under Article 122(1A) read together with Article 122B(1), 122B(2) and Article 125(1) of the Federal Constitution an additional judge can be appointed as the chief justice or the president of the Court of Appeal?
     
  4. Whether the appointments of judges by the Yang Di-Pertuan Agong under Articles 122(1A) and 122(1) of the Federal Constitution is justiciable?
     
  5. Whether the appointment of additional judges and thereafter of the chief justice and the president of the Court of Appeal announced whilst they were serving judges but to take effect after retirement violates Article 122(1), 122(1A) and 125(1) of the Federal Constitution?

The Bar had named former chief justice Arifin Zakaria, Justice Raus and Justice Zulkefli as respondents in the application.

The Bar was represented by former presidents Steven Thiru and Ambiga Sreenavasan. Current president George Varghese was also present in court.

Senior federal counsels Suzana Atan and Shamsul Bolhassan represented the AG's Chambers.

Meanwhile, Justice Azizah refused to grant leave for an application for judicial review filed by Amanah's assistant secretary Abang Ahmad Kerdee Abang Masagus to have Justice Raus explain his appointment.

She ruled that Amanah did not have the relevant legal standing, and that the issue was non-justiciable as the appointment had been made by the Agong.

Justice Azizah ordered Amanah to pay RM5,000 in costs. 

The court fixed Jan 3 for further mention of the case.

Amanah had made an application for a writ of quo waranto for Justice Raus to explain the basis of him holding the posts of an additional judge or chief justice. 

Party deputy president Salahuddin Ayob expressed disappointment over the decision as the appointment of Justice Raus had raised some eyebrows throughout the world.

Lawyer Hanipa Maidin, who is Sepang MP, said they will consider filing an appeal against this decision as the party is not questioning the Agong, but only the appointee.

Amanah, the Bar and former premier Dr Mahathir Mohamad had also challenged the appointments of Justice Raus and Justice Zulkefli but this was dismissed by Justice Azizah last month.