This follows court action by the Malaysian Bar seeking declarations that the appointments of Raus and Zulkefli are unconstitutional and void.

The questions that have been referred to the Federal Court 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 122B (1) of the Federal Constitution is 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?

Bar president George Varughese said in a statement today that these were the questions that were referred to the apex court. The court action, he added, was a result of the resolution adopted by the Bar at its extraordinary general meeting on Aug 3 to challenge the appointments of Raus and Zulkefli.

He said the next case management had been fixed for Jan 3, 2018.

This morning, when the matter came up for case management, High Court judge Azizah Nawawi agreed that the five questions were of constitutional importance and should be decided by the apex court.

The government had earlier intended to strike out the Bar’s suit but later consented to jointly refer the matter to the Federal Court.

On Oct 10, the Bar filed an originating summons to seek several declarations and named former chief justice Arifin Zakaria, Raus and Zulkefli as respondents.

The Bar’s stand is that Raus and Zulkefli cannot remain as chief justice and COA president respectively beyond the retirement age.

It argued that 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.

It noted that under Article 122 (1) of the Federal Constitution it was clearly worded that an additional judge could not be appointed to an administrative post.

Also, 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.

The Bar 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, and that Arifin could not suggest a prospective appointment of Raus and Zulkelfli when they were still in office.

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.