PUTRAJAYA (Aug 23): Former prime minister Datuk Seri Najib Razak submitted an application on Monday night (Aug 22) to have Chief Justice Tun Tengku Maimun Tuan Mat recused from presiding over the hearing of his final appeal in the SRC International Sdn Bhd case.
Najib's counsel Hisyam Teh Poh Teik informed the five-member bench that his client had made the application, and wanted the application to be heard first.
However, lead prosecutor Datuk V Sithambaram asked how could they argue when the sealed copy of the application is not before the court.
With this, Tengku Maimun asked Hisyam whether he had anything to submit with regard to the main appeal, to which the senior lawyer said no, but that he would like to reply to the prosecution's submission that the apex court could decide on the matter if the defence chooses not to make submissions.
Besides seeking to recuse Tengku Maimun, Najib also sought that a new bench be constituted to hear his final appeal.
The basis of Najib's application is based on a Facebook posting by Datuk Zamani Ibrahim — the Chief Justice's husband — on May 11, 2018, against which Najib's supporters have also lodged a police report.
According to Najib's affidavit of support, he is seeking to recuse Tengku Maimun from being on the bench and also presiding over the appeal based on the grounds that Zamani has been critical of the former premier.
The affidavit of support specifically cited the Facebook post dated May 11, 2018, attributed to Zamani, which pertained to the fall of the Najib-led government leading up to and after the 14th general election, whereby the author wrote, among others, that he was “happy because Najib had been dethroned”.
“Being the husband of the chairperson (Chief Justice Tengku Maimun) that is adjudicating my appeal, it is likely that he would have influenced the thinking of the mind of the chairperson as to my alleged culpability.
“I further state that considering the nature of their spousal relationship, it is likely that the mind of the learned chairperson would have been unconsciously influenced by the sentiments against me held by her Ladyship’s husband," the affidavit read.
Additionally, the defence asserted that the Chief Justice may have been biased in regard to its application to adduce fresh evidence relating to then SRC trial judge Datuk Mohd Nazlan Mohd Ghazali in view of the Walk for Justice held by the Malaysian Bar, where the Chief Justice had no objection to some lawyers asking for adjournment to attend the event.
Meanwhile, as Hisyam was contemplating having the recusal application be heard first, Tengku Maimun asked the senior lawyer whether he had anything to submit on the main appeal, to which the lawyer replied no.
However, Hisyam indicated that he would like to reply to the prosecution's submission, which was made last Friday, that the court could go ahead with making a decision without hearing the defence's submissions if it so chooses.
This resulted in an exchange between Tengku Maimun and Hisyam. Chief Judge of Sabah and Sarawak Tan Sri Abang Iskandar Abang Hashim, a member of the five-member quorum, interjected and suggested that Hisyam respond to the prosecution's submission.
Tengku Maimun also said the bench did not want to waste time.
After Hisyam provided a brief response to the prosecution’s submission, Tengku Maimun said the court will stand down for them to look at the documents on the recusal application.
It was reported on Tuesday that former Parti Bumiputera Perkasa Malaysia vice-president Datuk Hamidah Osman had lodged a police report against Zamani’s Facebook post.
The High Court on July 28, 2020 found the former premier guilty on one count of abuse of power with regard to the approval of loans totalling RM4 billion from Retirement Fund Inc (KWAP) to SRC. He was also found guilty on three counts each of criminal breach of trust (CBT) and money laundering involving RM42 million of SRC funds.
For the power abuse offence, he was sentenced to 12 years in jail and fined RM210 million. He was also sentenced to 10 years in jail for each of the CBT and money laundering charges. The High Court ordered that the jail terms run concurrently.
The conviction and sentence were upheld by the Court of Appeal on Dec 8 last year, which resulted in the present final appeal in the Federal Court. Najib is out on a RM2 million bail with two sureties pending the appeal.
For the grounds of decision on Najib’s bid to recuse Chief Justice, click here.