Bar President George Varughese said High Court judge Azizah Nawawi had consented to refer five questions of constitutional importance to the apex court to adjudicate.
“One of the questions is whether the court has the jurisdiction to hear and decide on the appointments,” he told reporters after lawyers for the Bar and government came to an agreement on the questions during a case management.
Ambiga Sreenevasan, Steven Thiru and Farez Jinnah appeared for the Bar while Amarjeet Singh and Alice Loke Yee Ching represented the government.
Meanwhile, Amarjeet said parties would appear before Azizah on Jan 2 to determine the facts of the case.
“The High Court will then refer the legal papers to the Federal Court for a hearing,” he said.
The government had earlier intended to strike out the Bar’s suit but has now consented to jointly refer the matter to the Federal Court.
Meanwhile, Azizah has also allowed the Muslim Lawyers Association to intervene in the proceedings.
On Oct 10, the Bar filed an originating summons to seek several declarations and named former chief justice Arifin Zakaria, Chief Justice Raus Sharif and Court of Appeal President (COA) Zulkefli Ahmad Makinudin as respondents.
On July 7, the government announced, in a media statement, that Raus would remain in office for another three years from Aug 4, while Zulkefli would remain in his post for another two years from Sept 28.
They were appointed as chief justice and COA president on April 1 and were scheduled to retire on Aug 3 and Sept 27 respectively, upon reaching the mandatory retirement age.
Bar secretary Chan Weng Kang, who affirmed an affidavit in support of the action, said Raus and Zulkefli could not remain as chief justice and COA president respectively beyond the retirement age.
Chan said a candidate for additional judge must have held high judicial position in Malaysia and the appointment must be for exceptional circumstances to deal with exigencies.
He said Article 122 (1) of the Federal Constitution was clearly worded and an additional judge could not be appointed to an administrative post.
He said Article 124 (4) stated that a person taking the oath on becoming a Federal Court judge (which would include an additional judge), should do so in the presence of the chief justice and this indicated that they were meant to be different individuals.
Chan said it was also unconstitutional for Prime Minister Najib Razak to participate in the decision-making process as he was currently an active litigant in several cases.
He said Arifin could not suggest a prospective appointment of Raus and Zulkelfli when they were still in office.
Arifin, who retired on March 31, had said he had only proposed to the king that Raus and Zulkefli be appointed as additional judges upon their mandatory retirement.
However it was Najib who advised the king, who, after consulting the Conference of Rulers, reappointed Raus and Zulkelfi to their present positions.