Judicial Commissioner Dean Wayne Daly referred the matter under Section 84 of the Courts of Judicature Act 1964 after lawyers for AAS and the Attorney-General’s Chambers (AGC) agreed to the constitutional questions to be raised before the apex court.
Federal Counsel Suzana Atan, who appeared for the AGC, confirmed the decision made in Kuching yesterday.
She said the constitutional questions raised were similar to the ones posed by the Malaysian Bar whose suit has also been referred to the Federal Court.
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.
It has 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.
On Oct 10, the Malaysian Bar also filed an originating summons which sought similar declarations as those requested by AAS.
The High Court in Kuala Lumpur on Dec 20 referred the matter to the Federal Court for a decision.
The five questions that have been referred to the Federal Court are:
- 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?
- 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?
- 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?
- 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
- 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?