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The application by online portal Malaysiakini for another judge to hear the suit against it by Prime Minister Najib Abdul Razak and Umno organising secretary Abdul Rauf Yusoh will be heard on Monday.

This is for leave (permission) to initiate the judicial review application. A judicial review application is a two-step process, with leave has to be obtained first to ensure there are not frivolous and vexatious grounds for the application.

The application will be heard before Kuala Lumpur High Court judge Asmabi Mohamad.

If leave is granted on Monday, Malaysiakini will also seek for a stay, or a postponement, of Najib's application to strike out portions of the portal's defence, which has been fixed to be heard on June 26 .

The portal's application to have a judge, other than Justice Kamaludin Md Said, to hear the case is the first known judicial review challenge on an administrative decision of the Chief Judge of Malaya (CJM), with the CJM, along with Najib and Abdul Rauf, named as respondents.

Malaysiakini filed the application on June 12, seeking to have another judge from the Civil Division of the High Court to hear the case since Justice Kamaludin had, from Jan 1 this year, been transferred to the High Court in Seremban.

Najib filed the suit against Malaysiakini and two others for two reports on readers’ comments on the portal’s reports on the Terengganu menteri besar imbroglio.

Judge Kamaludin only presided once

Chief Justice Zulkefli Ahmad Makinudin had insisted in Justice Kamaludin hearing the suit despite the High Court judge having presided the case only once, that is in Malaysiakini 's withdrawal of its application to recuse him.

Malaysiakini had late last year sought to remove Justice Kamaludin on the grounds that, at that time, he was only a judicial commissioner and the possibility of conflict of interest as Najib is responsible for advising the Yang di-Pertuan Agong on the appointment of judges under Article 122B(1) of the Federal Constitution.

That application was withdrawn on Nov 14 after Justice Kamaludin was confirmed as a full High Court judge.

That was the only time when Justice Kamaludin presided in the case, as the previous and subsequent case management sessions were before a deputy registrar.

In his affidavit in support of the application, Malaysiakini editor-in-chief Steven Gan ( photo ) said there was no basis for Justice Kamaludin to continue hearing the matter as another judge in the Civil Division of the High Court in Kuala Lumpur could easily take over the case.

No other judge can hear the case?

"For this reason, I verily believe that there is basis for a judicial review in respect of the decisions made by the CJM and his special officer," Gan said.

"I am further advised by my lawyers and believe that the CJM was acting in an administrative capacity at the time he made the said directions...

"... Having regard to the facts above, the CJM had acted ultra vires of Section 20 of the Courts of Judicature Act regarding the distribution of business among High Court judges, and/or with no legal basis in making the decision,” Gan said in the affidavit.

He further added that the CJM's decision to maintain Justice Kamaludin to hear the matter despite being transferred to Seremban would give rise to an impression that, for reasons that were not apparent, it was essential that only this judge hears this suit.

"This was an impression that was inconsistent with the due administration of justice. It would be unfair on Malaysiakini and in violation of their guarantees under Article 5(1) and 8(1) of the Federal Constitution and such move is deemed unreasonable," said Gan.

Article 5(1) states that no person shall be deprived of his life or personal liberty, save in accordance with the law, while Article 8(1) stipulates that all persons are equal before the law and entitled to the equal protection of the law.

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