1MDB critics fail to set aside alleged biased ruling led by top judge
The present panel should not consider whether the earlier bench had made the correct decision over Chief Justice Raus Sharif attending a private event by PM Najib Razak, says justice Zulkefli Ahmad Makinudin.
PUTRAJAYA: The Federal Court today declined to set aside a ruling presided over by Chief Justice Raus Sharif, against which a possibility of bias was raised as he had been seen with the prime minister at a private function.
A three-man bench chaired by Justice Zulkefli Ahmad Makinudin, in dismissing the review applications by former minister Zaid Ibrahim and ex-Umno leader Khairuddin Abu Hassan, said the matter did not come within the scope of Rule 137.
This provision under the Federal Court Rules 1995 allows the apex court to use its inherent powers to rectify its earlier ruling on grounds of miscarriage of justice.
Zulkefli, who sat with Justices Hasan Lah and Aziah Ali, said the allegation of bias had been raised and decided by the previous bench chaired by Raus on July 28.
“The present panel should not consider whether the earlier bench had made or not made the correct decision. Whether there is bias is a question of opinion,” he said.
Earlier, Raus, who sat with Chief Judge of Malaya Ahmad Maarop and Justice Azahar Mohamed, unanimously dismissed applications for leave to appeal to determine whether the attorney-general’s prosecutorial powers could be reviewed by the court. The applications were made by the duo and the Malaysian Bar on July 28.
Zaid and Khairuddin then filed applications in August to set aside the decision and for a fresh bench to be constituted to rehear their leave application.
They wanted the Federal Court to revisit the legal position in Malaysia whether the prosecutorial power of the attorney-general could be questioned by the courts.
This came about after Attorney-General Mohamed Apandi Ali cleared Najib Razak of any wrongdoing following allegations that RM2.6 billion of 1MDB money and an undisclosed amount of SRC International funds were found in the private bank accounts of the prime minister.
Apandi had, on Jan 26 last year, directed the Malaysian Anti-Corruption Commission to close investigations into the case.
Lawyer Gopal Sri Ram, appearing for Zaid, today told the bench that he and lawyer Mohamed Haniff Khatri Abdulla, representing Khairuddin, had, before the earlier hearing, asked the court registrar to pass the message that Raus should disqualify himself.
“The chief justice had attended a birthday function of the prime minister where no other judges were present,” he said, adding that Raus should not be seen with Najib, now an active litigant in court.
Sri Ram said the chief justice only said that he would decide the leave application fairly, which was a wrong test used to dismiss their complaint.
“Like Caesar’s wife, the chief justice must be above suspicion as the integrity of the institution is important in the eyes of the public,” he said.
Sri Ram said the “stream of justice must be kept pure” to instil public confidence, and Raus’ refusal to recuse himself was akin to a corrupt judge remaining on the bench despite having received a bribe.
Haniff said photographs of Najib with Raus emerged on a minister’s Facebook account a few days before the leave application was heard.
“The chief justice until today has not denied his presence at Najib’s official residence, Seri Perdana,” he said, adding that the perception of bias must be viewed from the perspective of a reasonable man.
He said Raus was seen with Najib on July 23, which was a few days before the chief justice was reappointed to remain in the present position.
Government lawyer Amarjeet Singh said the review application must be dismissed as the earlier bench had ruled on the recusal application when it was also raised in open court before the leave application itself was heard.
He said Raus had only attended a religious function held to commemorate the prime minister’s birthday.
“There must be finality in the leave application ruling or else we could also file another review if this bench rules in favour of the applicants (Zaid and Khairuddin).”
Amarjeet said the element of bias remained forever as all judges were appointed by the king on the advice of the prime minister.
Speaking to reporters later, Haniff said today’s ruling only revealed that lawyers need not raise matters like bias of judges during a proceeding.
“We have to be deceitful and only reveal the grounds to set aside an unfavourable ruling by filing review applications,” he said.
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Before the case went to the Federal Court, High Court judge Hanipah Farikullah, in three separate judgments, had said the courts were not the avenue for those unhappy with the decision of the attorney-general not to prosecute any criminal case to seek redress.