PUTRAJAYA: No one in Malaysia’s legal history has ever applied for a chief justice to recuse himself from hearing a case – until today.
The Malaysian Bar and two government critics today applied to disqualify Chief Justice Raus Sharif from hearing their leave applications in their case against the attorney-general’s failure to prosecute Prime Minister Najib Razak over the RM2.6 billion donation.
However, the three-man bench of the Federal Court, chaired by Raus himself, dismissed the application, saying there was no merit to the case.
“However, rest assured that any decision will be made with two others based on facts and law,” he told lawyers for the applicants.
Others on the bench were justices Ahmad Maarop and Azahar Mohamed.
Lawyer Gopal Sri Ram said it was better for Raus to recuse himself because his client, Zaid Ibrahim, had made serious allegations against the prime minister.
“It is better for public perception that you recuse yourself and another judge chairs the proceeding,” he said.
Lawyer Mohamed Haniff Khatri Abdulla, who is representing Khairuddin Abu Hassan, adopted Sri Ram’s submission.
Counsel for the Bar, Tommy Thomas, said his client would be instituting legal proceedings against Raus over the constitutionality of his continued appointment as chief justice after mandatory retirement.
“The Bar will be the plaintiff and the chief justice and Court of Appeal president will be named defendants, ” he said.
He said, traditionally, the Attorney-General ‘s Chambers would represent the chief justice and the Court of Appeal president.
Government lawyer Amarjeet Singh urged the bench to dismiss the application as it would set a precedent.
In April, a three-man Court of Appeal bench, led by Umi Khalthum Abdul Majid dismissed the appeals by the three against a High Court decision.
On Nov 11, Justice Hanipah Farikullah dismissed the leave applications to initiate a judicial review by the Malaysian Bar, former cabinet member Zaid Ibrahim and former Batu Kawan Umno deputy chief Khairuddin Abu Hassan.
The trio had challenged AG Mohamed Apandi Ali’s decision to close the case following allegations that RM2.6 billion was deposited in Najib’s bank accounts.
The AG, who is also public prosecutor, had, on Jan 26 last year, directed the Malaysian Anti-Corruption Commission (MACC) to close investigations into the cases.
Hanipah, in three separate judgments, said the courts were not the avenue for those unhappy with the decision of the AG not to prosecute any criminal case to seek redress.
“The avenue of the person being unhappy with his (AG) decision is elsewhere, not in the courts,” she said.
Hanipah, in her judgment, also said she was bound by a long line of Federal Court rulings why the decision of the AG not to institute criminal proceedings under Article 145(3) of the constitution could not be reviewed by the courts.
That provision states the AG has the discretion to institute, conduct and discontinue any criminal proceeding.
Hanipah said there was also no conflict of interest when Apandi decided not to frame charges against the prime minister on 1MDB and its related issues.