Najib can't advise Agong to revoke CJ's appointment, court told

Prime Minister Najib Abdul Razak cannot advise the Yang di-Pertuan Agong to revoke the appointment of Chief Justice Md Raus Sharif and Court of Appeal president Zulkefli Ahmad Makinudin as additional judges, the High Court in Kuala Lumpur heard today.

Senior federal counsel Alice Loke, who is appearing for Najib and the two judges, said the bid by former prime minister Dr Mahathir Mohamad to seek an order of mandamus to compel Najib to do so is not feasible under the law.

"It is not in the law or in the Federal Constitution for the prime minister to do so. The PM has no legal duty to advise on the revocation, hence, the court cannot order the mandamus (to compel him to do so)," she added.

Loke (photo) said this when objecting to Mahathir's leave (permission) application to challenge the appointment of Justice Raus and Justice Zulkefli beyond the retirement age of 66 years and six months.

Mahathir had filed a judicial review application last August to challenge the appointment of Justice Md Raus as the chief justice and another application last month against Justice Zulkefli.

Earlier, in her chambers, Justice Azizah Nawawi dismissed lawyer Mohd Haniff Khatri Abdulla's application to recuse her from hearing the case for the fear of a real danger of bias.

The lawyer had asked the judge to not hear the case as she had previously dismissed Mahathir's application to remove two members of the Royal Commission of Inquiry into the foreign exchange losses after ruling that such appointments can't be challenged in court.

Justice Azizah also dismissed an oral application by Haniff for a stay of proceedings on the leave application pending an appeal over the court's decision on the recusal.

After the judge ordered the hearing to go on, Haniff, who appeared with lawyer Rafique Rashid Ali, told the court that there are serious constitutional issues to be decided in the case.

The lawyer said Najib, as the prime minister, has a duty under the Federal Constitution to advise the Agong as he has taken the oath of office to uphold the constitution.

"Hence, Najib should do his constitutional duty to advise against the appointment of Justice Md Raus and Justice Zulkefli to hold the post as chief justice and Court of Appeal president beyond the mandatory retirement age of 66 years and six months," he said.

As such, Haniff argued, leave should be granted.

Justice Azizah said she will decide on Nov 6 on whether or not to grant leave for the judicial review application.

In his application, Mahathir also wants the court to order Justice Raus and Justice Zulkefli to suspend their duties as chief justice and COA president respectively until further order by the court.

Mahathir cited Article 125(1) of the Federal Constitution that stipulates that a judge cannot serve beyond the 66 years and six months mandatory retirement age, while Article 122(1A) stipulates that the appointment as an additional judge in the Federal Court cannot be made before the person retires.

He claimed that the constitution does not allow any of the Federal Court judges, appointed as an additional judge, to hold the top four posts in the judiciary.- Mkini