MORE legal experts have voiced their disapproval of high court judge Sofian Abd Razak presiding over Najib Razak’s SRC International Bhd graft case, citing a conflict of interest due to his relation to an Umno leader.

Sofian is the younger brother of Soffi Abd Razak, a five-term Pahang assemblyman, who is also serving as four-term state exco and Kuala Lipis Umno division chief. Najib was former Pahang menteri besar and president of Umno.  

On whether this alone was grounds for Sofian’s recusal, constitutional expert Shad Saleem Faruqi said: “Yes, it sure is.”

“In law, the disqualifying interest must be real and not be too remote. I understand there may be an additional relative relationship between the judge and Najib’s family,” said the Universiti Teknologi Mara emeritus professor.

“Given the totality of the facts – that Pahang is Najib’s bastion, that the Pahang Umno division chief is the judge’s brother – there is reasonable suspicion of bias.”

The 57-year-old Sofian was appointed judicial commissioner in 2005 before becoming high court judge in 2007.

Constitutional lawyer Surendra Ananth said the question was one of reasonable apprehension of bias. 

“Would a reasonable person form the view that the judge would be biased? There is no need to show actual bias. It boils down to whether the link to Umno would affect the perception of justice,” he said. 

Another constitutional lawyer, Lim Wei Jiet, said there was “definitely strong political interest” for Soffi to support Najib.

“That interest may, arguably, extend – or at least be perceived to extend – to Soffi’s closest relatives, including his brother (the judge),” he said. 

Malaysia is unique, as it adopts the stricter “real danger of bias” test for recusal of judges, as opposed to the UK and other common law countries that adopt a more liberal “possibility of bias” or “likelihood of bias” test, Lim said. 

“Nonetheless, my view is that every judge must strive their best to hold on to the adage that justice must not only be done, but must be seen to be done. 

“With respect, the judge should ask himself, ‘will a fair-minded and informed Malaysian, having considered this fact, conclude that there was a real possibility that the court was biased?’”

Lim said Sofian could take a leaf from justice Azizah Nawawi’s decision to recuse herself in former Selangor menteri besar Azmin Ali’s suit to declassify the audit report on 1Malaysia Development Bhd.

This was because Azizah’s husband is Nik Suhaimi Nik Sulaiman, legal adviser to the Selangor government. 

Universiti Malaya law lecturer Azmi Sharom, however, said blood relation alone was not necessarily enough to prove that the judge would be swayed. 

“An argument can be made but I don’t think it’s clear cut that he must recuse himself. It’s still for the courts to decide. The link of judge to Umno may be considered tenuous,” he said. 

Najib was charged on Wednesday with misusing his position as a government official to receive a RM42 million bribe as inducement to provide a sovereign guarantee on behalf of the Malaysian government for a RM4 billion loan from the Retirement Fund Inc (KWAP) to SRC International Sdn Bhd.

The former leader, who fell from power after Barisan Nasional lost the May 9 general election, also faces three counts of criminal breach of trust (CBT) in his capacity as prime minister, finance minister and SRC International adviser emeritus.

He claimed trial and appeared at the high court before Sofian, who granted him bail of RM1 million, with RM500,000 to be paid immediately and the remainder on Monday.

Prime Minister Dr Mahathir Mohamad’s personal lawyer, Mohamed Haniff Khatri Abdulla, said blood relations alone may not be enough to prove conflict of interest. 

“Relation with Umno members in itself is not cause for the rights of the judges to be rescinded. If so, how about judges who might be appointed in the future, who might be related to (Attorney-General) Tommy Thomas?”

Litigants have the option of applying to recuse a judge from hearing a case. The onus is on the Attorney-General’s Chambers and Najib’s defence team to recuse Sofian.

“I would not wish to pre-empt them as they know what’s best for their respective clients,” Lim said. 

“But my personal view is that, in the interest of justice and sanctity of the administration of justice, it is advisable that Sofian recuse himself from presiding over Najib’s trial. I believe the rakyat will appreciate this.” – July 6, 2018.