A three-man Court of Appeal bench chaired by Justice Mohd Zawawi Salleh said there would be “legal impediment and constraint” even if leave for judicial review was given to argue the matter in the High Court.
The panel, which included Justices Abdul Rahman Sebli and Abdul Karim Abdul Jalai, did not elaborate.
The court ordered the former prime minister to pay the government RM10,000 in costs.
At the outset of the proceeding, the court dismissed an application by lawyer Mohamed Haniff Khatri Abdulla to disqualify Zawawi and Rahman from hearing the case on grounds that both were in the panel which refused Mahathir a stay application on Aug 18.
Mahathir had asked the Court of Appeal to put on hold the RCI proceeding which began on Aug 21.
On Aug 17, the High Court held that the RCI members had no powers to remove themselves and thus there could be no formal decision on their recusal.
Today, the Appeal Court also dismissed a preliminary point raised by government lawyer Alice Loke Yee Ching who wanted the case to be dismissed as it was now academic.
She said the RCI, set up to probe Bank Negara Malaysia’s (BNM) forex trading losses in the 1990s, had submitted its report to the king and it was made public on Nov 30.
Haniff said the appeal was still a live issue as his client was challenging the composition of the tribunal and not the report.
“If we succeed in disqualifying two members, the consequential order will be that the report will also become null and void,” he said.
He said there was a breach of natural justice as Sidek and Saw were members of a task force that had conducted a preliminary investigation into the losses.
Haniff said the king, who is a constitutional monarch, acted on the advice of the government and could remove Sidek and Saw from the tribunal.
“That is the reason we are asking for a mandamus order for the government to advise the king to revoke the appointments of Sidek and Saw,” he said.
Haniff said his client was also seeking an order to quash the decision of Sidek who refused to disqualify himself and Saw from the tribunal on grounds that they were appointed by the king.
Loke said Mahathir was “barking up the wrong tree” as he had named the government as respondent to obtain his remedy.
“Under the Government Proceedings Act, the applicant (Mahathir) cannot obtain an order of mandamus (to compel a public official to perform a duty associated with his office) and an order of certiorari (to review a decision of a lower court) against the government,” she said.
She said Mahathir should have named a minister and the cabinet as parties to his action as the government was a separate entity.
Haniff then challenged Loke to state the law that made the executive not part of the government, to which she did not respond.
The tribunal, which presented the report to the king on Oct 13, concluded that BNM suffered a total loss of RM31.5 billion between 1992 and 1994 and that Mahathir had condoned it as the then prime minister.
The commission recommended police investigations into possible criminal breach of trust or cheating by various parties, including Mahathir and Anwar Ibrahim, who was finance minister from 1991 to 1998.
Special mention was made of ex-BNM adviser Nor Mohamed Yakcop, whom the report named as “principally liable for criminal breach of trust”.
Daim Zainuddin, another former finance minister (1984-1991), was said to have aided and abetted Nor Mohamed.