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Friday, February 16, 2018

Sri Ram: Justice Ahmad not empowered to form bench of retired judges



Chief Judge of Malaya Ahmad Ma'arop is not empowered to form a bench comprising retired Federal Court judges as sought by the Malaysian Bar in challenging the appointments of Chief Justice Md Raus Sharif and Court of Appeal president Zulkefli Ahmad Makinudin.
Former Federal Court judge Gopal Sri Ram said this after the Bar told reporters earlier today that they had informed Justice Ahmad (photo) about the application.


While Sri Ram maintained that the appointments of Justice Raus and Justice Zulkefli were unconstitutional, he said the Bar should follow the law.
"There is no such provision. Under the Courts of Judicature Act 1964 (CJA), it is the CJ who rosters, convenes and empanels the Federal Court.
"Of course the CJ, Court of Appeal president and all those judges who are members of the Judicial Appointments Commission (JAC), and were present at the JAC meeting when the issue of CJ and COA president came up, cannot hear the case.
"However, as a matter of law, until their appointments are set aside, Raus and Zulkefli are the de facto CJ and COA president. Each can exercise his power conferred by the CJA," he opined.
Lawyers, Sri Ram added, must follow the law.
"We cannot demand things to be done for which the Act of Parliament does not provide.
"As a matter of pure law, Justice Ahmad is powerless to do what is being demanded of him by the Bar. It is futile to demand what the Act does not permit.
"But until their appointments are set aside, we must follow the law. Two wrongs do not make a right. This is my respectful view," he told Malaysiakini.
Sri Ram was asked if the apex court can hear the application of the Bar for at least nine retired Federal Court judges to hear the challenge on the appointments of Justice Raus and Justice Zulkefli beyond the mandatory constitutional retirement age of 66 years and six months. 
It was reported that the Bar had already informed Justice Ahmad through a letter dated Aug 21 and a reminder on Feb 5 about the application. The Bar will be filing a formal application via a notice of motion next week.


Lawyer and former Bar president Steven Thiru (photo), who was present at the case management today, said the application to have additional retired Federal Court judges to hear this case would be made pursuant to Article 122 (1A) of the Federal Constitution on the appointment of Federal Court judges.

"We do not want the present judges to hear the reference questions. It will affect their independence in the sense that they will be put in an embarrassing situation of having to decide on the tenure of their superiors," he had explained.
Thiru said the application was made following the motion the Bar passed during its extraordinary general meeting to challenge the appointments and wanting retired judges to hear the matter.- Mkini

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