Wednesday 28 Feb 2024
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PUTRAJAYA (Aug 23): Datuk Seri Najib Razak’s last-ditch attempt on Tuesday (Aug 23) to recuse Chief Justice Tun Tengku Maimun Tuan Mat from the bench presiding over his final appeal against his conviction in the SRC International Sdn Bhd case, was dismissed.

After the five-member Federal Court bench reconvened from deliberating on the request on Tuesday, Tengku Maimun said that the panel rejected Najib’s motion that she be recused.

The Chief Justice saidthere was no nexus between her husband Datuk Zamani Ibrahim’s views on 1MDB and her ability to preside over the appeal.

Moreover, her letter on allowing members of the Malaysian Bar to apply for an adjournment to attend the Walk of Justice was no blanket statement on her stance, but was subject to the respective judges of the judiciary.

She said that in her view, the legal threshold of bias had not been passed.

"In order to recuse a judge, there must be proof of a real danger of bias. It is my view [that] the defence test has not been established.

"The Facebook post by my husband cannot amount to a real danger of bias," she said.

She further cited and read the Australian case of Kaycliff Pty Ltd v Australian Broadcasting Tribunal (1989) in the Federal Court of Australia, where the primary judge expressed the view that: “… it would be wrong to conclude that a casual statement by a husband of his views on a matter under consideration by a tribunal of which his wife is a member, gives rise to a reasonable apprehension that the husband's views might have been formed after discussion with his wife, or might be communicated to his wife”.

"We agree. Although we have found no authority directly bearing on the point, it appears to us that statements made outside and without the authority of a court or a tribunal by persons who are not its members cannot, in general, disqualify it from proceeding. Persons of considerable public credibility may on occasions make gratuitous statements as to a court's or a tribunal's established attitudes, perhaps even as a stratagem to create embarrassment. We think there are dangers in accepting the doctrine that statements of that kind can prejudice the right or effect the duty of a judge or tribunal member to sit," Tengku Maimun said.

In relation to the Walk of Justice, Tengku Maimun said she had left it to the court and individual judges to decide whether to allow lawyers for an adjournment to participate in the Malaysian Bar event.

Meanwhile, she added that just because judges in Najib’s past cases had recused themselves due to various reasons, it does not mean that she would have to recuse herself from Najib's appeal as well.

Chief Judge of Sabah and Sarawak Tan Sri Abang Iskandar Abang Hashim also separately concured that at the time that Datuk Zamani Ibrahim — Tengku Maimun's husband — made the posting, the case against Najib had not even been made yet.

Najib submitted the motion to recuse Tengku Maimun on the two grounds.

Najib attempted to get his former counsel Tan Sri Muhammad Shafee Abdullah to submit on the motion. But when Shafee turned up, he asked the court for permission to submit it the next day (Wednesday, Aug 24), as he had a symposium to attend to which he was chairing. The court denied his request and ordered submissions to proceed, leading subsequently to its decision to dismiss the recusal application.

For the grounds of decision on Najib’s bid to recuse Chief Justice, click here.

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