Court on why Mahathir has no case to disqualify 2 top judges

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PETALING JAYA: Dr Mahathir Mohamad’s legal challenge last year to disqualify two top judges is frivolous as he has no arguable case to obtain a mandamus order to revoke their appointments, the High Court said.

Justice Azizah Nawawi said the former prime minister had no clear and specific legal right to compel Prime Minister Najib Razak to advise the king to annul the appointments of Chief Justice Raus Sharif and Court of Appeal president Zulkefli Ahmad Makinudin.

“There is no statutory duty imposed by law on the prime minister,” Azizah said in her written grounds for dismissing Mahathir’s leave application for judicial review, made available to the media yesterday.

On Nov 6, Azizah had given an oral decision in dismissing Mahathir’s bid to obtain leave to annul the appointments of Raus and Zulkefli.

She said in the written grounds that nothing in Articles 40 (1), 40 (1A) and 122B (1) of the Federal Constitution gave Mahathir the legal right to obtain the mandamus order.

Azizah said under Article 122B (1), the prime minister is to give advice, after consulting the Conference of Rulers.

Under Article 40 (1A), meanwhile, the king will act on advice given.

“Therefore, under both these provisions, there’s nothing that gives the legal right to the applicant (Mahathir) to direct the prime minister to tender the advice to the Yang di-Pertuan Agong (YDPA),” she said in the 26-page judgment.

Azizah said there was simply no statutory duty imposed on the prime minister to act on Mahathir’s application to advise the king.

“I agree with the senior federal counsel (Alice Loke Ying Ching) that the YDPA has performed his function under Article 40 (1A) and the appointment had been made, except it was not made in accordance with his (Mahathir’s) interpretation of the constitution,” she said.

Mahathir filed two judicial reviews separately in August and September, seeking to compel Najib to advise the king to revoke the appointments of Raus and Zulkefli as additional judges, as well as chief justice and Court of Appeal president respectively.

Mahathir named Najib, the government, Raus and Zulkefli as respondents.

In the applications, Mahathir said the two should be barred from performing their judicial and administrative functions as their appointments were unconstitutional.

He said Article 125 of the Federal Constitution did not allow the appointment of two top judges beyond the retirement age of 66 years, plus six months’ extension.

He added that Article 122 (1A) did not allow an outgoing chief justice to advise the king to appoint a candidate who had yet to retire from the judiciary to be made an additional judge at a later date.

Mahathir also sought a declaration that the four top judicial administrators – the chief justice, Court of Appeal president, chief judge of Malaya and chief judge of Sabah and Sarawak – should not come from the ranks of additional judges.

Raus took the oath as an additional judge in the Federal Court and chief justice on Aug 4 while Zulkefli was sworn in as an additional judge and Court of Appeal president on Sept 28.

Raus will serve for three years and Zulkelfi for two years.

Lawyer Ilyani Khuzairy said the Court of Appeal had fixed May 31 to hear Mahathir’s appeal.

“Parties have been ordered to tender their written submissions by May 17,” she said, following a case management before deputy registrar Haslina Basaruddin on Tuesday. -FMT