Senior Federal Counel Alice Loke Ying Ching said as such, an order of mandamus sought by Dr Mahathir Mohamad against Prime Minister Najib Razak does not arise.
“The constitution does not provide a legal duty on the prime minister to remove the assent given by the king to appoint Raus Sharif and Zulkelfi Ahmad Makinudin as additional judges to remain in their administrative positions,” she told reporters of the submission she made in chambers before Justice Azizah Nawawi.
Loke said an aggrieved party could only obtain the mandamus order to direct a public officer to do or refrain to do something if a written law provided so.
She said Mahathir’s leave application for judicial review to revoke the appointments of Raus and Zulkefli and stop them from carrying out their judicial and administrative duties should be dismissed as the court could not give the relief sought against Najib.
Loke said at this stage the merit of Mahathir’s application was not a consideration.
Lawyer Mohamed Haniff Khatri Abdulla, who represented the former prime minister, said leave should be granted as there were serious constitutional issues that had to be determined by the court.
In rebutting Loke’s argument, Haniff said the Sixth Schedule of the constitution states that the prime minister has to defend, preserve and protect the supreme law of the land.
“So, he has a legal duty to advice the king to revoke the appointments of Raus and Zulkefli,” he said.
Azizah will deliver her ruling on Nov 6.
Haniff said Azizah had earlier dismissed Mahathir’s application to disqualify her from hearing the case on grounds that she could be biased.
Mahathir had filed two separate legal actions on Aug 8 and Sept 27 to revoke Raus and Zulkefli’s appointments.
The PPBM chairman wants a mandamus order from the High Court to compel Najib to advise the king to revoke Raus and Zulkefli’s appointments as additional judges and as Chief Justice and Court of Appeal president, respectively.
Mahathir named Najib, the government, Raus and Zulkefli as respondents.
He said Article 125 of the Federal Constitution did not allow the appointment of a Chief Justice and Court of Appeal president beyond the retirement age of 66 years and six months.
He said Article 122 (1A) did not allow an outgoing chief justice to advise the king to appoint a candidate who had yet to retire from the judiciary to be made an additional judge at a later date.
Mahathir also wants a declaration that the four top judicial administrators – the chief justice, Court of Appeal president, chief judge of Malaya and chief judge of Sabah and Sarawak – should not come from the ranks of additional judges.
Former chief justice Arifin Zakaria said he only proposed Raus and Zulkefli to be made additional judges.
However, the government announced on July 7 that Raus’s tenure as Chief Justice was for three years from Aug 4 while Zulkefli will remain as Court of Appeal President for two years from Sept 28.
Raus was supposed to retire on Aug 3 while Zulkefli’s last day in office was Sept 27.
The Malaysian Bar has also filed separate actions against Raus and Zulkefli and a case management is scheduled to be held on Thursday.