Pakatan Harapan chairperson Dr Mahathir Mohamad's challenge to remove two members of the Royal Commission of Inquiry (RCI) into forex losses was dismissed by the High Court in Kuala Lumpur today.

This came after Justice Azizah Nawawi allowed the preliminary objection raised by the government that the RCI's decision to have Mohd Sidek Hassan and Saw Choo Boon as members was not a decision that can be challenged in court.

Hence, the judge said, Mahathir's move to seek the order of mandamus (to compel) to remove them was not proper.

"Having considered the application and the submission, I am of the considered opinion the application does not pass the low threshold requirement (for judicial review)," Justice Azizah said.

She made her decision in chambers.

"Their application has been dismissed with no order as to costs," said senior federal counsel Amarjeet Singh, who appeared for the government and the RCI.

In explaining her decision further, Justice Azizah said under Sections 2 and 4 of the Commission of Enquiry Act 1950, the power to appoint commissioners rests with the Yang di- Pertuan Agong, who may appoint new members to replace any person who resigns, dies or desires to be discharged.

"As such, the RCI has no jurisdiction or power on the appointment and removal of its members. Therefore, the RCI has correctly refused to accede to Mahathir's application to disqualify Sidek and Saw."

Justice Azizah added that a mandamus can only be issued against a public officer. 

She said the High Court was bound by the decision made by the Federal Court in the case of RCI on the VK Lingam video clip caper in 2007, where it was stated that if the proceedings of the commission are allowed to be challenged, either at the outset or during its continuance by prohibition or its conclusion by certiorari, its purpose (of being set up) would come to a naught.

"It will make the setting up of the commission a meaningless exercise, and also a waste of money," the judge said.

Mahathir's lawyer Mohd Haniff Khatri Abdulla said he would seek instructions from the former prime minister on whether to appeal against the decision.

If they choose to appeal, an application to the Court of Appeal should be made urgently as the RCI hearing on the forex losses, which occurred in the 1990s, will begin on Aug 21 (Monday).

It was reported that Mahathir had sought to remove Sidek and Saw as they were also members of the task force, and as such, there could be elements of prejudice before the RCI hearing commenced.

This violated the principle of natural justice, Haniff had submitted previously.