PETALING JAYA: The prime minister has a role in the appointment of all judges, including the elevation of four judicial officers to hold administrative positions, a senior lawyer says.
Zainur Zakaria said this was a constitutional requirement and there was no way of appointing judges by sidelining the prime minister.
“The Federal Constitution does not allow, or is silent on allowing, anyone except the prime minister to advise the king on the appointment of judicial officers,” he told FMT.
Zainur was responding to a report that former prime minister Najib Razak’s lawyer had applied to disqualify the nation’s top four judges from hearing a review application by Dr Mahathir Mohamad and 1MDB critic Khairuddin Abu Hassan in a tort of misfeasance in public office lawsuit.
Mohd Hafarizam Harun told the court that the appointments of Chief Justice Richard Malanjum, Court of Appeal president Ahmad Maarop, Chief Judge of Malaya Zaharah Ibrahim, and Chief Judge of Sabah and Sarawak David Wong Dak Wah, were made on Mahathir’s advice.
Mahathir became prime minister on May 10 while the four took office last month.
Hafarizam raised a preliminary objection on the composition of the panel, saying it was to avoid any perception of bias. He also said it was in the interest of justice to instil public confidence in the judiciary.
However, the bench led by Malanjum did not decide on the preliminary objection. They agreed to adjourn the review hearing application pending disposal of another similar matter brought by Damansara MP Tony Pua.
Zainur, who is a former Malaysian Bar president, said Article 122B of the constitution stated that the Yang di-Pertuan Agong appointed judges on the advice of the prime minister after consulting the Conference of Rulers.
He said it so happened that the litigant in this case was the prime minister (Mahathir).
“That itself cannot cast aspersions on the integrity and impartiality of the judges,” Zainur said, adding that the application to recuse the judges was baseless.
He said the bench should have made a ruling on Hafarizam’s application and explained the process of appointing judges to enlighten the public.
On Feb 27 this year, a three-member bench chaired by then-chief justice Raus Sharif dismissed the leave to appeal application of Mahathir and Khairuddin.
The duo’s grounds for review were that Raus was biased, and that the three-member bench had misapplied the law in refusing to grant them leave.
Last year, the High Court, in allowing Najib to strike out Mahathir and Khairuddin’s suit, held that the then-prime minister could not be sued as he was not a public officer.
Malanjum headed the seven-member bench as this was a public interest case. Others on the bench were Federal Court judges Ramly Ali, Alizatul Khair Osman Khairuddin and Rohana Yusuf.
Pua had filed a similar action against Najib which was dismissed by the High Court on Oct 13 last year and affirmed by the Court of Appeal on April 13.
He has to obtain leave from the Federal Court before the merit of the case can be heard.
The Federal Court registry has fixed Nov 5 to hear Pua’s case.