Dr M entitled to pursue ruling on former top judges, says lawyer

Raus Sharif (right) and Zulkefli Ahmad Makinudin were appointed as additional judges after reaching the mandatory retirement age of 66 plus six months. (Bernama pic)

PUTRAJAYA: A lawyer says Dr Mahathir Mohamad, who filed a legal challenge against the appointments of two former top judges in 2017, is entitled to pursue his appeal and obtain a ruling on the matter despite the fact that he is now prime minister.

Speaking to FMT, Bastian Pius Vendargon said nothing had changed as Mahathir filed the action in his personal capacity.

He added that personalities before the court did not matter.

“His present status does not affect the appeal as judges are trained to rule on the facts and the existing law,” he said.

He was responding to questions on whether Mahathir should drop the case as he now has a hand in the appointments and elevation of judges under the Federal Constitution.

The Court of Appeal was scheduled to hear Mahathir’s appeal today against a High Court ruling refusing to commence a judicial review application.

However, the case was vacated to another date as Mahathir’s counsel, Mohamed Haniff Khatri Abdullah, was involved in an election petition in Penang.

Mahathir filed two judicial reviews in August and September 2017, seeking to compel former prime minister Najib Razak to advise the king to revoke the appointments of Raus Sharif and Zulkefli Ahmad Makinudin as additional judges as well as chief justice and Court of Appeal president.

However, the High Court dismissed Mahathir’s leave for judicial review application on Nov 6 that year, on grounds that it was frivolous. It also said he had no arguable case to obtain a mandamus order to revoke the appointments.

On Sept 24 last year, a six-member Federal Court bench declined to rule on the constitutionality of the decision to extend the tenures of Raus and Zulkefli.

That action was brought by the Malaysian Bar and Advocates Association of Sarawak (AAS).

Zainun Ali, who delivered the unanimous judgment, said the constitutional reference was academic and there was no dispute as Raus and Zulkefli were no longer in office.

They were replaced by Richard Malanjum and Ahmad Maarop, who were appointed as chief justice and Court of Appeal president on July 12.

Lawyer T Gunaseelan agreed that Mahathir was entitled to appeal, although the court would likely dismiss the case as it was bound to follow the decision by the apex court on Sept 24.

“He will have to go to the Federal Court to revisit the earlier ruling,” Gunaseelan said, adding that the constitutionality of Raus and Zulkelfi’s appointments was still a live issue.

He said the judgments delivered by the duo during their extended tenure were also under question.

“The status of Raus and Zulkefli has to be determined as the previous Federal Court abdicated its judicial responsibility in not deciding the issue,” he said.

Gunaseelan said the apex court was asked to interpret several articles in the Federal Constitution relating to the appointments, and that the legal fraternity was awaiting a ruling for future references.

“The six-member bench should not have ruled the matter as academic because it was a case of public interest and importance,” he added.

The issue began when Arifin Zakaria, who was chief justice at the time, proposed to the king on March 30, 2017 that Raus and Zulkefli be appointed as additional judges after their retirement.

Raus and Zulkelfi were appointed as chief justice and Court of Appeal president on April 1, 2017.

They had been scheduled to retire on Aug 3 and Sept 27 upon reaching the mandatory retirement age of 66 plus six months.

However, on July 7, 2017, the Prime Minister’s Office issued a statement extending Raus’ tenure for three years from Aug 4 and Zulkefli’s for two years from Sept 28.

This prompted the Bar, the AAS and Mahathir to file the constitutional challenge. - FMT