Lawyer Steven Thiru said this step was being taken as there was no indication that Chief Judge of Malaya (CJM) Ahmad Maarop would advise the king to appoint ex-judges for the sole purpose of determining the legal status of Raus and Zulkefli.
“We wrote to the CJM last August that nine retired judges be appointed but there was no reply. We sent a reminder on Feb 5,” he told reporters today after a case management before Federal Court deputy registrar Jumirah Marjuki.
He said the Bar had also listed out a set of retired judges who could be featured to resolve the constitutional dispute.
Steven, a former Bar president, said the Advocates Association of Sarawak’s (AAS), which had filed a similar challenge, also supported the move.
He said the Federal Court had fixed March 2 to hear the motion.
Steven said the action was also in line with the Bar’s stand at its extraordinary general meeting on Aug 3, which took the position that serving Federal Court judges should not hear the matter as they would be in a position of conflict of interest.
“We, therefore, call upon the Chief Judge of Malaya (Ahmad Maarop) to advise the king under Article 122 (1A) of the Federal Constitution to appoint persons who had held high judicial office as additional judges to rule on any legal challenge,” its president George Varughese had said.
Ahmad’s name was suggested to advise the king as Raus and Zulkefli will be in a position of conflict.
Varughese had said Ahmad could invoke Article 131A, read together with Section 9 of the Courts of Judicature Act 1964, which allows the most senior judge to exercise the powers of the chief justice during his incapacity or absence.
He said due to the disability of Raus and Zulkefli, Ahmad, as the next most senior judge in the judiciary, could step in to exercise the powers of the chief justice and advise the king.
Steven, who was assisted by Farez Jinnah, also said that the Bar and AAS’s constitutional reference had been tentatively fixed for March 14.
On Dec 19, the High Court in Kuala Lumpur allowed the Bar’s move to get the Federal Court to determine the validity of the appointments of Raus and Zulkefli as additional judges and to remain in their current administrative posts.
The High Court in Kuching had, on Jan 29, given green light for AAS to join in the Bar’s challenge.
On Oct 10, the Bar had filed an originating summons seeking several declarations and named former chief justice Arifin Zakaria, Raus, Zulkefli and the government as respondents.
The government, in a media statement, announced on July 7 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 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 Court of Appeal president respectively beyond the retirement age.
He said Article 122 (1) of the constitution was clearly worded and, therefore, an additional judge could not be appointed to an administrative post.
Chan said Article 122 (1A) stated that a candidate for additional judge must have held high judicial position in Malaysia and that the appointment must be made after retirement.
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.
AAS’s suit, which is supported by an affidavit from its president Ranbir Singh Sangha, is crafted in a manner similar to the Bar’s pleadings.
Ranbir and government lawyer Ahmad Terriruddin Mohd Salleh were also present during the case management today.