DR Mahathir Mohamad has initiated legal proceedings to challenge the appointment of Zulkefli Ahmad Makinudin as president of the Court of Appeal on the grounds of unconstitutionality today.

This afternoon, his lawyers filed an application for leave to proceed with judicial review against Prime Minister Najib Razak and the government.

The application sought to obtain a mandamus order for them to immediately advise the Yang di-Pertuan Agong to terminate Zulkefli’s appointment.

Zulkefli’s tenure as Court of Appeal president was extended an additional two years in a controversial move by the Prime Minister’s Office (PMO) in July.

He was due to step down tomorrow, when he reached the constitutionally stipulated retirement age of 66 years and six months.

Zulkefli, along with Chief Justice Raus Sharif, were appointed as “additional judges” to the Federal Court, allowing them to them to serve beyond their term limits. 

Lead counsel Haniff Khatri Abdulla filed the application at the Kuala Lumpur High Court this afternoon.

In the application, which cited Article 40(1) and 40(1A) of the Federal Constitution, a mandamus order was sought to compel Najib and the government to advise the Yang di-Pertuan Agong to revoke or cancel his decree on July 25 regarding Zulkefli’s appointment.

The application cited four violations of the Federal Constitution:

• Article 125(1) of the Federal Constitution does not allow the appointment of a judge who has reached the constitutionally limited age of 66 years and six months to hold the post of president of the Court of Appeal.
• Article 122(1A) of the Federal Constitution does not allow for the recommendation for the replacement of an additional judge to be made to the Yang di-Pertuan Agong before the said additional judge has retired.
• Article 122(1A) of the Federal Constitution does not allow any recommendation made by a sitting Chief Justice, prior to his retirement, to be made to the Yang Di-Pertuan Agong regarding the future appointment of additional judges.
• Article 122 of the Federal Constitution does not allow additional judges to hold any of the four top posts of the Federal Court, which includes the president of the Court of Appeal.

The swearing-in ceremony for Zulkefli is scheduled for tomorrow.

“As far as Dr Mahathir is concerned, the appointment of the court of appeal president is unconstitutional,” Haniff said when contacted.

“It is very clear in the Federal Constitution that the top judges, including the chief justice, can only be in their positions until the age of 66 years.”

“Beyond that age, they can only become additional judges. In our opinion, they can’t be anything else except normal court judges.”

In August, Dr Mahathir also applied for a court order to compel Najib to advise the king to revoke Raus Sharif’s appointment as additional judge and chief justice.

That case is set to be heard at the Kuala Lumpur High Court on October 24.

“I must state it has nothing to do individual personality,” Haniff said.

“There’s no objection as to their capabilities or performance. That is not the issue. It has to do with the constitutionality of their appointments.”

Lawyers have opposed the appointments, with the Malaysian Bar voting overwhelmingly in favour of a no-confidence motion against Raus and Zulkefli on August 3, calling for a legal challenge to the extensions in court.

The Advocates Association of Sarawak followed suit a few weeks later. So far, no legal action has yet been filed in court. – September 27, 2017.