BAR COUNCIL MALAYSIA v. TUN DATO' SERI ARIFIN ZAKARIA & ORS AND ANOTHER APPEAL; PERSATUAN PEGUAM-PEGUAM MUSLIM MALAYSIA (INTERVENER)

[2018] 5 MLRA 345

BAR COUNCIL MALAYSIA v. TUN DATO' SERI ARIFIN ZAKARIA & ORS AND ANOTHER APPEAL; PERSATUAN PEGUAM-PEGUAM MUSLIM MALAYSIA (INTERVENER)
Federal Court, Putrajaya
Hasan Lah, Zainun Ali, Ramly Ali, Balia Yusof Wahi, Aziah Ali, Alizatul Khair Osman Khairuddin FCJJ
[Civil Reference Nos: 06(f)-1-01-2018(W) & 06(f)-5-02-2018(Q)]
24 September 2018

JUDGMENT

Zainun Ali FCJ:

Introduction

[1] These references of constitutional questions under s 84 of the Courts of Judicature Act 1964 raise the issue of whether the appointments of the 2nd respondent and the 3rd respondent as the Chief Justice of Malaysia and the President of the Court of Appeal respectively, after their mandatory retirements, are valid and constitutional.

[2] In Civil Reference No: 06-01-2018(W), the applicant is the Bar Council who represents the advocate and solicitors in West Malaysia. In Civil Reference No. 06(f)-5-02-2018(Q), the applicant, the President of the Advocates Association of Sarawak, represents the advocates in Sarawak.

[3] Pursuant to an Order of the High Court at Kuching dated 23 March 2018 inter alia, the Sabah Law Society was permitted to appear as amicus curiae at the hearing of the Reference No: 06-5-02-2018(Q). Motion for intervener was filed on 13 December 2017 by the Muslim Lawyers Association in the suit filed by the Bar Council. Leave to intervene was allowed by the High Court at Kuala Lumpur.

[4] Both the High Courts referred the following constitutional questions to this Court for determination:

1. Whether under art 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?

2. Whether under art 122(1A) read together with art 122B(1), 122B(2) and art 125(1) of the Federal Constitution an additional judge can be appointed as the Chief Justice or the President of the Court of Appeal?

3. Whether the appointment of judges by the Yang di-Pertuan Agong under arts 122(1A) and 122B(1) of the Federal Constitution is justiciable?

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