Najib Abdul Razak's lawyer today objected to the presence of four top judges hearing a review application of Dr Mahathir Mohamad's misfeasance in their RM2.6 billion public office suit against the former prime minister.

Mohd Hafarizam Harun said four of the seven judges on the bench – Chief justice Richard Malanjum, Court of Appeal president Ahmad Ma'arop, Chief judge of Malaya Zaharah Ibrahim and Chief judge of Sabah and Sarawak David Wong Dak Wah – were appointed on the recommendation of Mahathir as prime minister.

For this reason, the lawyer applied for the four judges to recuse themselves.

"The reason why we raise this is to restore public confidence in the judiciary, and the test is (perception) by the reasonable man on the street," he said.

Mahathir, along with Amanah member Khairuddin Abu Hassan and former Bersatu member Anina Saadudin had filed the lawsuit against Najib in 2016 for breach of fiduciary duty and misfeasance in public office.

They claimed that Najib acted in bad faith to undermine various institutions involved in the probe of 1MDB scandals related to the remittance of RM2.6 billion in his bank accounts.

'Two CJs'

In today's hearing, Hafarizam also pointed to several articles, including two written by former chief justice Abdul Hamid Mohamad, questioning if there were two chief justices at the time of Malanjum's appointment on July 11. 

This is because Malanjum's predecessor, Md Raus Sharif, had previously stated that his retirement would only come into effect on July 31.

However, Malanjum replied that Mahathir and Khairuddin's lawyer Mohd Haniff Khatri Abdulla had previously used the same argument to ask Raus to recuse himself when leave was applied for in the case, but the then-chief justice did not.

In reply, Haniff said that he objected to Raus being on the bench at the time because of his questionable legitimacy as chief justice – as he was granted an extension to by Najib despite exceeding the mandatory retirement age for judges.

'Wait for Tony Pua'

Haniff proposed a solution to the conundrum, however.

"I can see where Hafarizam is coming from, albeit differently, but I would like to propose a solution to the bench.

"(Damansara MP) Tony Pua's application for leave to appeal is coming up on Nov 5 on a similar issue as ours regarding public office, which has haunted this legal system and judiciary.

"Hence, we take this there on Nov 5 provided that I be granted watching brief in Pua's case," he said.

Haniff (photo) also informed the bench that attorney-general Tommy Thomas has agreed to intervene in the review hearing, but the chambers had yet to be served the cause papers.

After a short discussion with other members of the bench, Malanjum agreed to defer hearing the review application pending the Nov 5 decision.

Mahathir's suit was struck out in April this year on the grounds that Najib as the then-prime minister was not considered a public officer. The decision was upheld by the Court of Appeal and the Federal Court.

Pua had also filed a similar suit against Najib, which was dismissed by the High Court and upheld by the Court of Appeal on April 13 just before the 14th general election.

However, Court of Appeal judge Justice Lau Bee Lan's written judgement stated that there is a need for a clear definition of a public officer.

This is the first time since Malanjum's appointment that a seven-member bench is sitting in on a public interest case, as well as the first time that three of the judges were picked by ballots.

Upon being appointed, the chief justice had said that his "new approaches" to the judiciary would include seven judges for public interest cases, nine for constitutional cases, and judged chosen via a voting process.