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The High Court in Kuala Lumpur reasoned that Dr Mahathir Mohamad's application for Prime Minister Najib Abdul Razak to advise the Yang di-Pertuan Agong to revoke the appointments of the top two posts in the judiciary as frivolous and is not arguable.
Justice Azizah Nawawi in her written grounds said under Article 122B(1) of the Federal Constitution, the prime minister is to give advice after consulting the Conference of Rulers.
"Under Article 40(1A), the Agong shall act on the advice given. Therefore, under both these provisions, there is nothing that gives the legal right to Mahathir to direct the prime minister to tender the advice to the Agong."
Mahathir, in his judicial review application, wanted to compel the prime minister to advise the Agong to revoke the appointments of Chief Justice Md Raus Sharif and Court of Appeal president Zulkefli Ahmad Makinudin as additional judges.
The Pakatan Harapan chairperson filed two separate applications – one against Raus last August and the other against Zulkefli in September – as they reached the mandatory retirement age of 66 years and six months.
Mahathir's challenge was the first to be dismissed, before other applications were made by opposition party Amanah, the Malaysian Bar and the Advocates Association of Sarawak (AAS).
The applications by Bar and AAS were heard at the Federal Court on March 14, and are pending decisions.
Mahathir's challenge was dismissed last November but the grounds were only made available recently.
Azizah, in her 27-page judgment said she agreed with the senior federal counsel's submission that the application was doomed to fail, as the government, named as the second respondent, was not a relevant party and not an entity as referred to under Article 122B(1), read with Article 40(1A).
"Thus an order of mandamus cannot be issued against the government, either under Section 44 of the Specific Relief Act or Para 1 of the Schedule," the judge said.
On seeking a mandamus (to compel) the prime minister to advice the Agong under Article 40(1) and (1A) to revoke Raus and Zulkefli's appointments, and to terminate the Agong's assent, the judge ruled there was no arguable case, and that it was frivolous.
"The applicant (Mahathir) has no clear and specific legal right for the relief sought and that there is no statutory duty imposed by law on the PM to do so," Azizah said.
"As such, the issue here is whether there is any legal duty or obligation imposed on the prime minister and that there is a failure to perform the said legal or statutory duty.
"I am of the considered opinion that there is no statutory duty imposed on the prime minister to act in the manner that Mahathir has applied for. There is also no issue that the prime minister has failed to perform a statutory duty," she reasoned.
Mahathir's appeal on the High Court decision has been fixed on May 31 at the Court of Appeal. - Mkini
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