IT is reported Najib Razak wants the four top judges to be excluded from sitting on the Federal Court seven-man bench to hear a review application by Prime Minister Dr Mahathir Mohamad on the latter’s tort of misfeasance in public office lawsuit.

Apparently Najib’s lawyer, Mohd Hafarizam Harun told the court that the appointments of chief justice Richard Malanjum, Court of Appeal president Ahmad Maarop, chief judge of Malaya, Zaharah Ibrahim, and chief judge of Sabah and Sarawak, David Wong Dak Wah were on the advice of Dr Mahathir.

Apparently Najib’s lawyer had raised the preliminary objection to the composition of the panel saying it was to avoid any perception of likelihood of bias and that it was also in the interest of justice, particularly for public confidence in the judiciary.

I am not sure what point he was trying to make in court as it looked like Najib’s lawyer was merely stating what the federal constitution provides.

The federal constitution has this to say on the appointment of judges of the Federal, Appeal and High Courts:

Article 122B (1) The Chief Justice of the Federal Court, the President of the Court of Appeal and the Chief Judges of the High Courts and (subject to Article 122c) the other judges of the Federal Court, of the Court of Appeal and of the High Courts shall be appointed by the Yang di-Pertuan Agong, acting on the advice of the Prime Minister, after consulting the Conference of Rulers. 

(2) Before tendering his advice as to the appointment under Clause (1) of a judge other than the Chief Justice of the Federal Court, the Prime Minister shall consult the Chief Justice.

(3) Before tendering his advice as to the appointment under Clause (1) of the Chief Judge of a High Court, the Prime Minister shall consult the Chief Judge of each of the High Courts and, if the appointment is to the High Court in Sabah and Sarawak, the Chief Minister of each of the States of Sabah and Sarawak.

It is clear that the appointments  of the current chief justice, president of the Court of Appeal, chief judge of Malaya and chief judge of Sabah and Sarawak were made by the Yang di-Pertuan Agong acting on the advice of the prime mnister,  after the necessary consultations. This was done as provided and required by the federal constitution.

And now, these four top judges should recuse themselves because they were appointed on the advice of the prime minister as provided in the federal constitution?

The so-called perception of likelihood of bias cannot possibly arise from the argument that these top four judges were appointed under the provisions of the federal constitution.

Before he was chief justice, Malanjum was appointed to be the chief judge of Sabah and Sarawak on the advice of Abdullah Ahmad Badawi, the fifth prime minister,  on July 26, 2006. Malanjum continued his service as chief judge of Sabah and Sarawak under the premiership of the sixth prime minister Najib until the 7th prime minister Dr Mahathir took over.

The Court of Appeal president Ahmad was previously appointed as the chief judge of Malaya on the advice of the sixth prime minister Najib on April 4, 2017.

The chief judge of Malaya Zaharah was appointed as a Federal Court Judge on the advice of the sixth prime minister on February 16, 2015.

The chief judge of Sabah and Sarawak Wong was appointed as a Federal Court judge on the advice of the sixth prime minister on April 28, 2018.

It is perplexing to say that these top four judges should not be sitting in a case which involves Najib because it is purportedly not in the interest of justice and that it will purportedly erode public confidence in the judiciary. 

Such an argument  just doesn’t make any sense because these top four judges have remained in the judiciary on the advice of the very person who is now asking them to recuse themselves from a case in which he is involved.

In Metropolitan Properties Co v Lannon (1969) 1 Q.B. 577 (C.A.), Lord Denning said that in considering whether there is a real likelihood of bias, the court does not look at the mind of the judge. “The court looks at the impression which would be given to other people. Even if the judge can be as impartial as he can be, nevertheless, if right-minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit. And if he does sit, his decision cannot stand.”

The key words are ‘“right-minded persons”. The question would be, as a right-minded person, in a case brought about by Dr Mahathir before he was the prime minister against Najib, would you have the impression that when Dr Mahathir  became the prime minister and advised on the appointment of the top four judges, and now these four top judges are sitting in a review at the Federal Court for that same case brought about by Dr Mahathir, there would be a real likelihood of bias on their part?

We must understand that the case brought about by Dr Mahathir for misfeasance in public office against  Najib was never heard on the merits. It was struck out based on the interpretation of the law that defines ‘public officer’ by the High Court, and subsequently agreed by the Court of Appeal and Federal Court. 

Hence, the review of that Federal Court decision. It involves the interpretation of the law of tort of misfeasance in public office.  If  Dr Mahathir is successful in this review, the case would be sent back to the High Court for trial on the merits of the case.

To say now that the top four judges might be biased on the interpretation of  the law of tort of misfeasance in public office is very unfair.

* Puthan Perumal, advocate and solicitor, reads The Malaysian Insight.

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.