A seven-member Federal Court bench today declined to rule over the controversial appointments of former chief justice Md Raus Sharif and former Court of Appeal president Zulkefli Ahmad Makinudin, saying the matter is academic.

The decision comes six months after constitutional questions were brought before the court by the Malaysian Bar and the Advocates Association of Sarawak, who questioned the appointments of Raus and Zulkefli. 

However, chief judge of Malaya Justice Zaharah Ibrahim recused herself from delivering the decision, saying that she was appointed after the resignations of both the former chief justice and former COA president.

Federal Court judge Justice Zainun Ali – in her last judgment before her retirement on Oct 4 – wrote the unanimous judgment which said that courts should not rule on a matter when it is deemed academic.

"The question before us is this. In view of the fundamental changes in the governance of the judiciary with the departure of Raus and Zulkefli, the stark issues as housed in the questions posed have now become blunted by consequential events.

"The illegality alleged has been superseded by subsequent events. As such, the subject matter of the dispute – the constitutionality of the judges holding their respective offices in no longer in existence. Their replacements have been made.

"What then is the dispute that needs to be resolved?" she asked in her judgement. 

Zainun added there is no remedy that the court can give to affect to the Bar's application.

"Since matters have changed irrevocably by reason of their (Raus and Zulkefli's) resignations, it is no longer tenable for this court to answer the questions posed, because the factual substratum underlying the questions no longer exists.

"Since there is no live issue, the court should not rule in the matter. Therefore the court does not act in vacuo nor in vain," the judgement read.

Hence, the court refused to answer the four questions of law posed to the seven-member bench. 

  • 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 or Court of Appeal president announced whilst they were serving judges, but to take effect after retirement, violates Article 121(1), Article 122 (1A) and Article 125(1) of the Federal Constitution.

Besides Zainun, the Federal Court bench today comprised Justice Hasan Lah – who led the bench in Zaharah's absence – as well as Justices Ramly Ali, Balia Yusof Wahi, Aziah Ali and Alizatul Khair Osman Khairuddin.

Zainun made no order as to costs.

As she ended her judgment, the Malaysian Bar and the Attorney-General's Chambers, congratulated Zainun and wished her a happy retirement.

Earlier, the judge explained in detail that Zaharah (photo) had recused herself from the bench in order to avoid any notion of bias due to her elevation as one of the top three judicial officers in the country.

It was reported that Raus attained the mandatory retirement age as stipulated in the constitution of 66 years and six months on Aug 3, 2017, but was appointed as an additional judge the following day, before being reappointed as CJ for three years.

Zulkefli meanwhile reached the same age on Sept 27, 2017. Similarly, he was appointed as an additional judge and retained as Court of Appeal president the following day.

At the High Court last year, the Bar questioned their appointments and allowed the four questions of law to be posed, which were heard in March.

Raus and Zulkefli resigned from the posts on June 7, which was consented by the Agong four days later.

Justice Richard Malanjum was then made the new CJ, while Justice Ahmad Ma'arop was elevated from chief judge of Malaya to Court of Appeal president.