pic by TMR FILE
The Court of Appeal today dismissed the appeals by Prime Minister Tun Dr Mahathir Mohamad (picture) to challenge the appointment of former Chief Justice Tun Md Raus Sharif and Court of Appeal president Tan Sri Zulkefli Ahmad Makinudin.
This followed a request by Dr Mahathir’s lawyer Mohamed Haniff Khatri Abdullah for the two appeals to be dismissed based on the Federal Court’s ruling on another case that the issue was academic and that Datuk Seri Najib Tun Razak, who is the first respondent in the appeals, is no longer the Prime Minister.
Court of Appeal Judge Datuk Abdul Rahman Sebli who presided over the appeals with Justices Datuk Mary Lim Thiam Suan and Datuk Hasnah Mohammed Hashim unanimously dismissed the appeals with no order as to costs.
“On the application by the appellant itself, therefore these two appeals are dismissed with no order as to costs.
“In any events, we are of the view that since the first respondent is no longer the Prime Minister of Malaysia and he is in no position to advise the Yang di-Pertuan Agong in terms of the orders sought in the judicial review application, the application has become redundant and exercise in futility as candidly admitted by Mohamed Haniff himself,” said Justice Abdul Rahman.
Dr Mahathir had appealed against the Kuala Lumpur High Court’s ruling on Nov 16, 2017, which denied his leave applications for judicial review to challenge the appointment of the two top judges.
Earlier, Mohamed Haniff submitted that the appeals should be dismissed because of the Federal Court ruling on Sept 25, 2018, that the issue had become academic (not live issue) as both of them (Md Raus and Zulkefli) had resigned.
He said he did not agree with the decision but the Court of Appeal would be binding with the Federal Court ruling.
“Therefore we pray that the appeals to be dismissed. So we will go to the Federal Court to file a motion for leave to pose questions,” he said and stressed to the court that he had not withdrawn the appeals.
Senior Federal Counsel Alice Loke Yee Ching argued that the issue had become academic because the matter was overtaken by events as Najib was no longer the Prime Minister to revoke the appointments of Md Raus and Zulkefli.
Lawyer Steven Thiru acted for Malaysian Bar who held as amicus curiae (friend of the court) submitted that the matter was still a live issue as the mandamus order sought by Dr Mahathir in his judicial review application had yet to be determined by the court.
“Yes, the position of the personalities in these appeals has changed, but the issue is still alive and needs to be determined by the court,” he said.
On Aug 9, 2017, Dr Mahathir filed an application for leave for judicial review naming Najib, the government and Md Raus as respondents, to have a mandamus order to compel the then prime minister (Najib) and the government to immediately render advice to the Yang di-Pertuan Agong to revoke or terminate Md Raus’ appointment as Chief Justice for another three years from Aug 4, 2017.
On Sept 27, 2017, Dr Mahathir filed a similar application, naming Najib, the government and Zulkefli as respondents, to challenge the appointment and extension of the Court of Appeal president’s term.
Both applications were submitted on four grounds based on constitutional provisions, including Article 125 (1) of the Federal Constitution which does not allow someone who has reached the age of constitutional service of 66 years and six months to be appointed as Chief Justice.
Outside court, Mohamed Haniff told reporters that he requested the two appeals to be dismissed because the Court of Appeal would be binding by the Federal Court ruling.
“So what we said is there is no point wasting time for this court. They can dismiss the appeal, we go further up and sort it out in the Federal Court.
“I think they are two important questions to be posed. First, whether the Federal Court’s decision is academic or not, whether the matter itself is academic or not.
“Number two, those questions on constitutionality, whether it amounts the constitutional questions which leaves should be granted. We will be filing for leave within 30 days,” he said.