The Malaysian Bar is seeking a nine to 11-member bench comprising retired Federal Court judges to hear its challenge against the appointments of Chief Justice Md Raus Sharif and Court of Appeal president Justice Zulkefli Ahmad Makinudin beyond the mandatory constitutional retirement age of 66 years and six months.

The hearing of this application has been fixed for March 2 before the Federal Court.

Lawyers Steven Thiru and Farez Jinnah appeared for the Bar during case management this morning, while the Advocates Association of Sarawak (AAS), which had filed a similar challenge, was represented by its president Ranbir Singh Sangha.

The case management was done before Federal Court deputy registrar Jumirah Marjuki.

Thiru told reporters they had already informed Chief Judge of Malaya Ahmad Ma'arop through a letter dated Aug 21 and a reminder on Feb 5, about the application. The Bar will be filing a formal application via a notice of motion next week.

"The Bar has also proposed several retired judges to possibly hear this case but to make sure it is independent [...] those who had commented on the issue should not be on the list," he said.

Therefore, Thiru added, former chief justice Abdul Hamid Mohamad and former Federal Court judge Gopal Sri Ram (photo) would not be among the names proposed.

Hamid had written in his blog twice against the appointments, whereas Sri Ram had shared his views with the media.

Thiru said the application to have additional retired Federal Court judges to hear this case would be made pursuant to Article 122 (1A) of the Federal Constitution on the appointment of Federal Court judges.

"We do not want the present judges to hear the reference questions. It will affect their independence in the sense that they will be put in an embarrassing situation of having to decide on the tenure of their superiors," he explained.

The former Malaysian Bar president said upon hearing the application for a nine-member bench of retired apex court judges, the Federal Court this morning also fixed March 14 to hear the reference application of the five questions of law raised in the main application.

"Whether it proceeds on March 14 will depend on whether the appointments of the additional judges can be made by the hearing on March 14 and if the Bar's application is allowed on March 2," he added.

Thiru (photo) said the application was made following the motion the Bar passed during its extraordinary general meeting to challenge the appointments and wanting retired judges to hear the matter.

The Malaysian Bar filed an originating summons last October, where it had named former chief justice Arifin Zakaria, Justice Raus and Justice Zulkefli as respondents in the application. 

On Dec 19, the High Court in Kuala Lumpur allowed the Bar's five questions pursuant to Section 84 of the Courts of Judicature Act. The questions allowed by Justice Azizah Nawawi are:

  1. Whether under Article 122(1A) of the Federal Constitution, an additional judge can be appointed on the advice of the chief justice, whose 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, whose 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 are justiciable; and
     
  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.