The Bar, together with its counterpart, the Advocates Association of Sarawak (AAS), had challenged the appointments of former chief justice Raus Sharif and Court of Appeal president Zulkefli Ahmad Makinudin last year.
Its president George Varughese said the Bar was discouraged as the judges had not seized the opportunity to determine issues which were of considerable constitutional and public importance.
In a statement read after the verdict, he said the four questions posed to the court also concerned the administration of justice.
“These are live and substantive issues for the determination of the Federal Court, whose interpretation is relevant and could have been relied on in the future.”
Earlier today, Zainun Ali delivered a unanimous decision that the matter was now academic since Raus and Zulkefli had resigned from office in July.
“It is not tenable to answer the questions as the court will not act in a vacuum,” said Zainun, who will be retiring next month.
The others on the six-man bench were Hasan Lah, Ramly Ali, Balia Yusof Wahi, Aziah Ali and Alizatul Khair Osman Khairuddin.
Chief Judge of Malaya Zaharah Ibrahim, who was originally part of the panel, recused herself on grounds that she would be accused of bias.
The Bar and the AAS had sought the court’s legal opinion on whether the tenure of Raus and Zulkelfi could be extended by making them additional judges.
Varughese said the questions also fell under the domain of public law and should be determined as a matter of significant public interest.
“The constitutional questions raised concern matters relating to the appointments of the chief justice and the Court of Appeal president, who are leaders of the judicial branch of the government,” he said.
“They are entrusted with the supreme duty of determining the constitutionality of laws passed by the legislative branch and the legality of decisions made by the executive branch.”
Varughese said there was also the question of whether an outgoing chief justice was permitted under law to advise the Yang di-Pertuan Agong on the appointment of additional judges which would take effect after he left office.
He said these were not matters which had been rendered academic due to the passage of time or change in circumstances.
He said the panel’s refusal to answer the questions meant that there could be more controversial appointments of this nature in the future.