KUALA LUMPUR, Oct 24 — The prime minister has no legal duty to advise the country’s ruler to cancel the chief justice’s (CJ) appointment, as there was no such duty written in the Federal Constitution, the High Court was told today.
Senior federal counsel Alice Loke Yee Ching said she had objected against Tun Dr Mahathir Mohamad’s bid to further his lawsuit, also explaining that she had argued that Dr Mahathir cannot seek a mandamus or court order to compel the prime minister to push for the ruler to revoke royal assent for the Chief Justice’s appointment.
“I said it has nothing to do with the government,” she told reporters when met at the Kuala Lumpur court complex today.
“But whether he can ask for mandamus against the prime minister, I said he cannot, because he must show legal duty on the part of the prime minister to advise the Yang di-Pertuan Agong to revoke.”
“Constitution doesn’t provide for legal duty on part of the prime minister to advise the Agong to revoke the appointment or to revoke the assent given to the appointment. The Constitution does not show the prime minister has duty, so for that reason, mandamus cannot arise.
“Mandamus can only arise if there is legal duty in statue on part of the public officer to do something,” she added.
Lawyer Mohamed Haniff Khatri Abdulla, who represented Dr Mahathir, said he had argued for leave from the court for his client’s case to go for hearing on its merits.
“The most important point is constitutional issues are matters which must be given leave.
“And if constitutional issues shows the appointment is unconstitutional, there is legal duty on the prime minister to advise the King to terminate the appointment and that legal duty is based on the oath of service as prime minister,” he told Malay Mail Online when contacted today after a hearing in chambers on Dr Mahathir’s application for leave for judicial review.
High Court judge Datin Azizah Nawawi has fixed November 6 for decision on whether to allow Dr Mahathir’s lawsuit to proceed and be heard.
Today, Mohamed Haniff said there was a letter dated October 16 from the Chief Justice to transfer this lawsuit that was initially before High Court judge Datuk Kamaludin Md Said to be heard by Azizah.
The lawyer said his law firm had written in on October 19 to object the case transfer and had yesterday received a reply from the Chief Justice’s office that the application had been dismissed.
Mohamed Haniff said his application today for Azizah to be recused for this lawsuit was dismissed by her, adding that his application for proceedings to be stayed pending appeal on the recusal bid was also dismissed.
“I asked her to be recused… She heard the RCI matter and she decided mandamus relief cannot be given on government,” he said.
He was referring to Azizah’s August 17 decision in an unrelated lawsuit, where she ruled that the High Court could not issue a mandamus order or court order to compel the Malaysian government or prime minister to act, as both are not considered to be “public officers”.
On August 9, Dr Mahathir filed a lawsuit agains Prime Minister Datuk Seri Najib Razak, the federal government and Chief Justice Tan Sri Md Raus Sharif.
Dr Mahathir had sought two orders, including a mandamus order to compel the prime minister and federal government to immediately render advice under the Federal Constitution’s Articles 40(1) and 40(1A) for the Yang di-Pertuan Agong to revoke or terminate Md Raus’s appointment as Chief Justice for another three years from this August 4.
Dr Mahathir, a former prime minister, also asked for a court order to stay Md Raus from carrying out any of his functions as the Chief Justice until the end of the lawsuit.
The lawsuit by Dr Mahathir, who is the chairman of both his party Parti Pribumi Bersatu Malaysia and opposition pact Pakatan Harapan, cited four grounds based on constitutional provisions including the Federal Constitution’s Article 125(1) which he said disallows someone aged beyond 66 years and six months to be the appointed as Chief Justice.
Md Raus had on August 4 — at the age of 66 years and six months — taken his oath as the Chief Justice for the next three years.