The Federal Court today grilled lawyers from the Bar Council and Attorney-General's Chambers on whether a case challenging the constitutionality of the appointment of the nation's two former top judges was academic.

This is as Mohd Raus Sharif (photo above) and Zulkefli Ahmad Makinudin had resigned as chief justice and Court of Appeal president respectively.

The AGC, represented by senior federal counsel Suzana Atan said the duo's resignations rendered the matter academic, while maintaining that their appointments were constitutional.

Lawyer Ambiga Sreenavasan, representing the Bar Council which filed the case, however, argued that the case was not academic as there were questions of law that were of general importance that need to be answered.

Lawyer Roger Chin representing the Sabab Law Society and Haniff Khatri Abdulla, who held watching brief, supported this stand, adding that it was important for the Federal Court to provide guidance on how to interpret the Constitution on this matter for future reference.

Similarly, intervener Adzly Abdul Manaf from the Muslim Lawyers Association, acting on behalf of senior lawyer Shafee Abdullah who was not present, also argued that the matter was not academic, although they believe Raus and Zulkefli's appointments were constitutional.

Meanwhile, the seven-member bench also questioned the lawyers who argued whether the panel was competent, given that one of its members, Justice Zaharah Ibrahim, had been elevated as the Chief Judge of Malaya after Raus and Zulkefli's resignations.

All those who argued that the matter was not academic said the panel was competent.

Ambiga also said that the Bar believed there was no conflict of interest as the case had no impact on any present appointments.

She further argued that even if the panel believed there was a conflict, Section 78 of the Courts of Judicature Act allowed the bench to make a majority decision.

Senior federal counsel Suzana concurred with Ambiga's (photo) interpretation of Section 78, but said there was indeed a conflict with Zaharah's position on the bench.

The case has been adjourned to a later date pending a decision on the clarifications sought by the panel led by Justice Hasan Lah.

Previously, Ambiga had argued before the bench that the retention of Raus and Zulkefli by the then government for another two years, despite them passing the mandatory retirement age, had undermined the independence of the judiciary.

Raus and Zulkefli vacated their posts on their own accord in July. They were replaced by Richard Malanjum as chief justice and Ahmad Ma'arop as Court of Appeal president.

During the hearing, four questions of law were posed to the seven-member bench namely:

  • Whether under Article 121(1A) of the Federal Constitution, an additional judge can be appointed on the advice of the chief justice, which is advised to take effect after the latter's retirement;
  • Whether under Article 121(1A), read together with Article 122B(1), Article 122B(2) and Article 125(1) of the Federal Constitution, an additional judge can be appointed as the chief justice or Court of Appeal president;
  • Whether the appointment of judges by the Yang di-Pertuan Agong under Articles 122(1A) and 122B(1) of the Federal Constitution is justiciable; and
  • Whether the appointment of additional judges and thereafter of the chief justice and the Court of Appeal president, announced whilst they were serving judges but taking effect after retirement, violates Article 121(1), Article 122(1A) and Article 125(1) of the Federal Constitution.