PETALING JAYA: Dr Mahathir Mohamad’s appeal to declare the appointments of two top judges unconstitutional has been vacated pending the outcome of a Federal Court ruling on a similar matter, lawyer Mohamed Haniff Khatri Abdulla says.
He said the Court of Appeal which was scheduled to hear the appeal today had instead converted the matter to a mention.
“Since the Court of Appeal is bound by a Federal Court ruling, we wrote in last week to convert it to a mention pending the much awaited decision by the apex court,” he told FMT.
A seven-member bench on March 14 heard the reference applications of the Malaysian Bar and the Sarawak Advocates Association (SAA).
Both want a declaration that the appointments of Chief Justice Raus Sharif and Court of Appeal president Zulkefli Ahmad Makinudin as additional judges are unconstitutional.
The bench was also asked to decide whether the duo could remain in their administrative posts in their capacity as additional judges.
On May 16, FMT also reported that lawyers had urged the bench chaired by Hasan Lah to quickly deliver its decision as the latest political developments called for a quick resolution.
The 92-year-old Mahathir had led Pakatan Harapan to a historic election victory on May 9 after defeating Barisan Nasional, led by Najib Razak.
Raus and Zulkefli were appointed as chief justice and Court of Appeal president on April 1 last year. They were scheduled to retire on Aug 3 and Sept 27 respectively upon reaching the mandatory retirement age of 66 plus six months.
The government, however, announced on July 7 that Raus would remain in office for another three years from Aug 4, while Zulkefli would remain in his post for another two years from Sept 28.
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.
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 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.
On Nov 6, the High Court dismissed Mahathir’s leave for judicial review application on grounds that it was frivolous as he had no arguable case to obtain a mandamus order to revoke their appointments.
Justice Azizah Nawawi said Mahathir had no clear and specific legal right to compel Najib to advise the king to annul the appointments of Raus and Zulkefli.