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Case Update: When are legal proceedings rendered as academic

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CONSTITUTIONAL LAW
Judicial review – Constitutional review under section 84 of the Courts of Judicature Act 1964 – Whether appointments of Chief Justice of Malaysia and President of the Court of Appeal after their mandatory retirements valid and constitutional – Whether matter has been rendered academic after resignation – Federal Constitution, Articles 122(1A), 128(2) – Courts of Judicature Act 2984, section 84

Bar Council Malaysia v Tun Dato' Seri Arifin bin Zakaria & Ors and Another Appeal; Persatuan Peguam-Peguam Muslim Malaysia (Intervener)
[2018] 5 MLRA 345, Federal Court

Facts YAA Tan Sri Dato’ Seri Md Raus bin Sharif (‘the second respondent’) and YAA Tan Sri Dato’ Seri Zulkefli bin Ahmad Makinudin (‘the third respondent’) had been appointed as the Chief Justice and the President of the Court of Appeal after their mandatory retirements, and as additional judges in the Federal Court pursuant to Article 122(1A)[1] of the Federal Constitution. The Bar Council Malaysia (‘the appellant’) instituted legal proceedings to challenge the constitutionality of the appointments of the second and third respondents as Chief Justice of the Federal Court and the President of the Court of Appeal respectively. This was followed by an application under section 84[2] of the Courts of Judicature Act 1984 and Article 128(2)[3] of the Federal Constitution to refer a series of constitutional questions to the Federal Court for determination. Subsequent to the hearing, by reason of the General Election held on 9 May 2018 there was a change in government which resulted in the resignation of the respondents.

Issue The main issue is whether the legal proceeding to challenge the constitutionality of the appointments of the 2nd and 3rd respondents as Chief Justice of the Federal Court and President of the Court of Appeal respectively, has been rendered as academic.

Held In dismissing the appeal, the Federal Court held that in view of the fundamental changes in the governance of the Judiciary with the departure of the respondents, the question of constitutionality of the judges holding their respective offices is no longer in existence. Thus, it would not be appropriate for the court to make a determination on the questions posed.
 
 
[1] Constitution of Federal Court
[2] Reference of constitutional question by High Court
[3] Jurisdiction of Federal Court