The application, filed under Section 84 of the Courts of Judicature Act 1964, outlines 16 questions which Syed Amir believes the apex court must deliberate on as the “guardian of the constitution”.
He contends that the Federal Court’s determination is necessary to enable the High Court to proceed with an originating summons action he filed earlier this year.
The application, sighted by FMT, was submitted by solicitors Syed Ibrahim & Co at the High Court registry today.
Syed Amir is seeking a ruling on whether the JAC Act 2009 contravenes the Federal Constitution and is therefore unconstitutional and whether judicial appointments made under the Act are rendered void as a result.
He also questions whether the establishment of the JAC – without an express constitutional amendment and without consultation with the Conference of Rulers as required under Article 38(4) – invalidates the Act.
In the originating summons filed in early April, Syed Amir argues that the powers vested in the nine-member JAC violate the doctrine of separation of powers and the basic structure of the constitution.
He is seeking a mandamus order to compel the prime minister and the government to strictly adhere to the judicial appointment process prescribed under Article 122B of the Federal Constitution.
He further claims that the JAC Act is inconsistent with Article 4, which declares the written constitution as the supreme law of the land.
Under the JAC Act, the commission is tasked with proposing nominees for judicial appointments to the High Court, the Court of Appeal and the Federal Court.
It also recommends candidates for the positions of chief justice, the president of the Court of Appeal, the chief judge of Malaya, and the chief judge of Sabah and Sarawak when vacancies arise.
Justice Amarjeet Singh is scheduled to hear the originating summons action on July 16.
However, Syed Amir is seeking a suspension of those proceedings pending the Federal Court’s determination of the 16 questions, which he describes as involving “critical” and “high-impact” constitutional issues.
In his affidavit supporting the reference application, he asserts that the questions were neither academic nor hypothetical, but directly affect the validity of all judicial appointments made in Malaysia since 2009.
He also maintains that Article 122B of the Federal Constitution grants the prime minister absolute discretion to advise the Yang di-Pertuan Agong on judicial appointments.