The AAS, which filed an originating summons in the Kuching High Court on Dec 27, wants an order that Chief Justice Raus Sharif and Court of Appeal president Zulkefli Ahmad Makinudin be removed from their positions.
In the action, filed through legal firm Messrs Arthur C A Lee & Partners, the AAS named former chief justice Arifin Zakaria, Raus, Zulkefli and the Malaysian government as defendants.
It wants a declaration that Arifin’s proposal to the king on March 30 last year to make Raus and Zulkefli additional judges under Article 122 (1A) of the Federal Constitution is unconstitutional and void.
It also wants a declaration that the government’s July 7 announcement that Raus and Zulkefli would be made “additional judges” is also unconstitutional.
The AAS wants a declaration that Raus and Zulkefli’s appointments as chief justice on Aug 4 and Court of Appeal president on Sept 28 respectively are null and void.
A case management before Judicial Commissioner Dean Wayne Daly at the Kuching High Court has been fixed for Jan 29.
AAS president Ranbir Singh Sangha, who affirmed an affidavit in support of the action on behalf of the association, said the appointment of an additional judge to the Federal Court was only for extraordinary circumstances to deal with exigencies.
Further, he said, only additional judges who had held high judicial office in Malaysia were to be appointed to this position, and that, too, for a specific purpose and time.
“It is intended to be a temporary appointment and for an ad hoc matter,” said Ranbir in the affidavit sighted by FMT.
He said under Article 122 (1), the Federal Court consisted of 11 judges, the chief justice, the Court of Appeal president, the Chief Judge of Malaya, the Chief Judge of Sabah and Sarawak and additional judges.
“Because Article 122 (1) is worded in clear and plain language specifying the three categories, an additional judge cannot hold any of the four offices and vice-versa. They are office holders in their own right,” said Ranbir.
Article 124 states that persons taking the oath of office on becoming a Federal Court judge, including the additional judge, shall do so in the presence of the chief justice, again indicating that they are different persons.
Ranbir said Article 122 (1A) had been part of the constitution for about 50 years and no chief justice had remained in office after his compulsory retirement.
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 Court of Appeal president on April 1 and had been scheduled to retire on Aug 3 and Sept 27 respectively, upon reaching the mandatory retirement age.
Ranbir 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.
On Oct 10, the Bar filed an originating summons which sought similar declarations as those requested by AAS.
The High Court in Kuala Lumpur has referred the matter to the Federal Court for a decision.
Bar president George Varughese said Kuala Lumpur 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 said.
The Bar and the AAS last year obtained a mandate from members to seek legal redress.