Petronas fails again to recuse judge in sales tax dispute

The Court of Appeal says the prime minister has no influence in the elevation of JCs to become High Court judges.

PUTRAJAYA: Petronas has failed again in its move to disqualify Judicial Commissioner (JC) Christopher Chin from hearing Sarawak’s suit for unpaid state sales tax amounting to RM1.3 billion.

A three-member Court of Appeal bench chaired by Badariah Sahamid said the prime minister had no influence in the elevation of JCs to become High Court judges under the Judicial Appointments Commission (JAC) Act.

Notwithstanding the provisions in the Federal Constitution, Badariah said, the prime minister was required under the law to uphold the independence of the judiciary.

“We are further fortified by section 27 of the JAC Act which does not allow for the prime minister to ask for additional names other than those that have been recommended by the commission.

“This is the legislative scheme in the context of confirmation of JCs and their subsequent elevation as high court judges,” she said of the unanimous ruling

The other judges on the bench were Vazeer Alam Mydin Meera and M Nantha Balan .

Badariah said a recusal application, if allowed, could lead to wide ramifications and cause the disqualification of JCs in a myriad of cases when the prime minister was involved either by his office or by his position in the Cabinet, statutory bodies or government-linked companies.

“Where does it all end? There are no easy answers to this tough questions and every case has to be considered on its own merits,” she said.

Badariah said the bench was satisfied there was no basis for Chin to disqualify himself to hear the dispute but not on the award of costs.

“We dismiss this appeal with no order as to costs. We also set aside the costs (of RM50,000) that was awarded against the appellant (Petronas),” she said.

Petronas had earlier applied for Chin to discharge himself from hearing the case.

The national oil company claimed that Chin would decide the case to favour the prime minister as his tenure as a judicial commissioner was temporary and was subject to confirmation by the prime minister, who is also the person with ultimate control over Petronas.

Chin, however, said that during his nine months on the bench, he had never been instructed, hinted or urged by his “bosses” – the chief judge of Sabah and Sarawak, the chief justice, or any judge or person for that matter – on how he should decide any dispute.

He said many judicial commissioners who had delivered judgments against the federal government still received their confirmation in their posts.

The Sarawak government and the comptroller of state sales tax filed a statement of claim to recover the tax owed by Petronas to the state.

Petronas has not paid the state sales tax for petroleum products under the State Sales Tax Ordinance 1998, which is due to the state.

The 5% state sales tax was imposed on Jan 1, 2019.

JC Fong, who appeared for the state and the comptroller, told reporters Chin would hear the case on March 13.

Lawyer Malik Imtiaz Sarwar appeared for Petronas.