DATO' SRI MOHD NAJIB ABD RAZAK v. PP & OTHER APPEALS (NO 3)

[2022] 6 MLRA 179
Federal Court, Putrajaya
Tengku Maimun Tuan Mat CJ, Abang Iskandar Abang Hashim CJSS, Nallini Pathmanathan, Mary Lim Thiam Suan, Mohamad Zabidin Mohd Diah FCJJ
[Criminal Appeal Nos: 05(L)-289-12-2021(W), 05(L)-290-12-2021(W) & 05(L)- 291-12-2021(W)]
Tengku Maimun Tuan Mat CJ, Abang Iskandar Abang Hashim CJSS, Nallini Pathmanathan, Mary Lim Thiam Suan, Mohamad Zabidin Mohd Diah FCJJ

DECISION ON ENCLOSURE 300

(Recusal)

Tengku Maimun Tuan Mat CJ:

[1] The appellant, during the course of the hearing of these appeals, has filed an application to recuse me from hearing these appeals and for the appeals to be reheard before a different panel. The application is presented in encl 300.

[2] The grounds in support of the application are firstly, a Facebook post dated 11 May 2018 by my husband, Zamani bin Ibrahim and secondly, a letter from the Bar Council of Malaysia stating that I, as Chief Justice, had no objection if lawyers would apply for adjournments to attend an event called Walk of Justice on 17 June 2022 relating to Justice Nazlan.

[3] The respondent submits that this application is mala fide and filed deliberately to scuttle the progress of these appeals as the two grounds relied by the appellant relate to events that happened four years and three months ago respectively.

[4] It was contended by the appellant that since no affidavit in reply was filed, the truth of the contents of the exhibits are not in dispute. In my view, that does not mean that the legal threshold for bias and recusal has been met. The absence of an affidavit in reply is immaterial because recusal is essentially a question of law.

[5] The Federal Court, in PP v. Tengku Adnan Tengku Mansor [2020] 4 MLRA 730; [2020] 5 MLJ 220; [2020] 9 CLJ 30; [2020] 6 AMR 235, has recently affirmed that in order to recuse a judge, the test is the 'real danger of bias test'.

[6] The question is whether the grounds of the application to recuse successfully raises a real danger of bias. It is my view, based on decided cases, that the test has not been established.

[7] The first ground seeks to associate the views of my husband made four years ago in his Facebook such that it has now raised the alarms of a real danger of bias. There is a case directly on this point, that is, the judgment of the Federal Court of Australia in Kaycliff Pty Ltd v. Australian Broadcasting Tribunal and Another [1989] 18 ALD 782 ('Kaycliff'). This case stands for the proposition that the views of a spouse of a judge cannot in itself be used as a ground for recusal.

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