Lawyer Haniff Khatri Abdulla told reporters that Justice Azizah Nawawi had in chambers dismissed the leave application for judicial review on the grounds that there is no written law to state the prime minister has the duty to advise the Yang di-Pertuan Agong on the appointments of Raus and Zulkefli.
“The court agrees that an order for mandamus (order to direct a public officer to do something) can be given by a judge.
“But not in this case as there is no legislation to state the PM must advise the king on the legality of the appointments,” he said.
Senior federal counsel Alice Loke, representing the government and judges, confirmed the decision when met outside the court.
No order was made as to costs.
Haniff said they had obtained instructions to challenge today’s decision at the Court of Appeal.
Mahathir had filed two judicial reviews separately in August and September to revoke the appointment of the two judges.
He sought to compel Prime Minister Najib Razak to advise the king to revoke the appointment of Raus and Zulkefli as additional judges as well as chief justice and Court of Appeal president respectively.
Mahathir had named Najib, the government, Raus and Zulkefli as respondents.
In the application, Mahathir said the duo should be barred from performing their judicial and administrative functions as their appointments were unconstitutional.
He said Article 125 of the Federal Constitution did not allow the appointment of two top judges beyond the retirement age of 66 years, plus six months’ extension.
He added 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 wanted 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.
Besides Mahathir, the Malaysian Bar had also filed a suit against Raus, Zulkefli and former chief justice Arifin Zakaria.
The Bar wants a court declaration that the advice by Arifin to the king on March 30 that Raus and Zulkefli be appointed as additional judges under Article 122(1A) of the Federal Constitution was unconstitutional.
Other declarations sought in the originating summons were that the appointments of Raus and Zulkelfi as chief justice and Court of Appeal president respectively were unconstitutional and they should be removed from office.
On Aug 3, the Malaysian Bar, at its extraordinary general meeting (EGM), voted with a resounding majority that the appointments of Raus and Zulkefli were unconstitutional.
Lawyers and at least two retired judges have argued that the constitution does not allow additional judges to double up as holders of administrative positions.
Retired chief justice Zaki Azmi argued these appointments were valid and said the provision for additional judges was utilised as Raus and Zulkefli had only been in their positions since April 1.
Further, he said a constitutional provision that allowed judges to remain in office up to 66 years of age plus six months’ of extension was archaic compared with other Commonwealth countries.
Attorney-General Mohamed Apandi Ali also supported the appointments as he said it was in accordance with the constitution.
Raus took the oath as an additional judge in the Federal Court and chief justice on Aug 4 while Zulkefli was sworn in as an additional judge and Court of Appeal president on Sept 28.
Mahathir challenges legality of Zulkefli as Court of Appeal president