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Friday, December 15, 2017

Zaid, Khairuddin's bid to review CJ's decision dismissed



The Federal Court has dismissed an application to review an earlier judgment made by Chief Justice Md Raus Sharif on the refusal to recuse himself from hearing an appeal over the decision by attorney-general Mohamed Apandi Ali to not prosecute Prime Minister Najib Abdul Razak.
Court of Appeal president Zulkefli Ahmad Makinudin said the apex court found no merit in the application made by former Umno member Khairuddin Abu Hassan and former law minister Zaid Ibrahim.
"We are of the view that the application does not fall within the principle and scope of Rule 137 of the Rules of the Federal Court.
"We are of the view that it is not for the present panel to consider whether the earlier panel had or had not made a correct decision before the facts placed before them," said Justice Zulkefli who led the three-member bench.
No order as to costs was made.
The other two judges on the panel today were Justice Hasan Lah and Justice Aziah Ali
Earlier, Gopal Sri Ram, who appeared for Zaid, said that the registrar was informed that Justice Raus' recusal would be sought as there was photographic evidence which showed that he was at Najib's birthday function.
"We made the application orally, we informed the registrar that the chief justice attended a function at the prime minister's house.
"I called the registrar and told her to advise the chief justice that we will seek recusal because he was at this birthday function and seated next to him (Najib), who is a real target in the case," said Gopal (photo), a former Federal Court judge.


Justice Raus, who dismissed the objection, had said that he will decide cases based on the law.
Today, Gopal insisted that there was a danger of bias, stressing that it was inappropriate for Justice Raus to associate himself with the litigant (Najib).
When pointed out by Zulkefli how there were others present during the function, Gopal retorted by saying that Justice Raus was the only judge present.
Asked whether the chief justice's presence might have been required due to his position as the head of the judiciary, Gopal cited the nature of the function, which was that of a private one.
"It doesn't give the correct impression. Judges must do their best to impress the public that they are above suspicion.
"Judges should be very careful who they mix with. The safest course is to recuse rather than to hear the case," he added.
'Sitting next to PM'
Lawyer Mohamed Haniff Khatri Abdulla, who represented Khairuddin, pointed out how the photographs had shown Justice Raus sitting and standing next to the prime minister during the function.
These photographs were uploaded on Minister in the Prime Minister's Department Jamil Khir Baharom's Facebook page.
Meanwhile, senior federal counsel Amarjeet Singh argued that the issue of whether there was an instance of a danger of bias had already been dismissed by the earlier panel.
"And the chief justice was attending a function. I don't see the word private here (in the application). It was a religious function, you see a whole bunch of people.
"This court cannot review this decision as though it's an appeal. If you decide in favour of the applicants, we will take this matter up for review, so when is it going to stop?"
However, Gopal argued that they were not asking for a decision to be made on the matter but that a recusal should have been made or otherwise.
"We are not challenging a decision by the court. We are saying the chief justice should have recused himself once the facts were placed before him.
"Based on the evidence, was there a real danger of bias? If there was, then the chief justice should have recused himself," he said.
Met by reporters later, Haniff said today's decision meant that lawyers would have to file another motion at a later date, even if there was relevant information available at the time.
"If there is any information which anyone reveals with regard to any partiality of any member of the quorum of any court, it does not apply there. If the application is not in favour, file another motion later to say this is what happened.
"I don't think that should be the right way because justice delayed is justice denied.
"We, as lawyers, are called to raise issues which we come to know, immediately. We cannot support any delay in justice," Gopal said.- Mkini

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