Najib S Federal Court Motion Raises Key Questions About Recusal Of Judges

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Najib Razak wants the Federal Court to admit fresh evidence to show that Court of Appeal judge Nazlan Ghazali had ‘personal involvement’ in setting up SRC and was present at meetings to discuss a loan for 1MDB.PETALING JAYA: A key question unfolding within former prime minister Najib Razak’s appeal to the Federal Court from his criminal conviction in the SRC International case is whether High Court judge Nazlan Ghazali ought to have disqualified himself from presiding over the trial due to an alleged conflict of interests.
By a motion filed on June 7, Najib is asking the Federal Court to admit fresh evidence, which he claims was not available previously, to show Nazlan, Maybank’s general counsel and company secretary between 2006 and 2015, had “personal involvement” in setting up SRC and was present at meetings which deliberated an RM4.17bil loan for 1MDB to acquire Tanjong Energy.
Such “involvement” made Nazlan a potential witness in the former prime minister’s 1MDB criminal trial – presently on-going in another High Court – and gave rise to a conflict of interests, Najib claims. He says Nazlan should have recused himself from presiding over the SRC trial on that basis.
In his affidavit-in-reply, deputy public prosecutor Ashrof Adrin Kamarul claims that Nazlan’s previous position in Maybank had no relevance to the SRC trial.
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Ashrof says that the judge’s purported knowledge of Maybank’s loan to 1MDB was unrelated to the issues in the SRC case and did not bar Nazlan from presiding.
The prosecutor also contends that Nazlan’s employment with Maybank was public knowledge and was always known to Najib who never raised any objection. In any case, Ashrof says, the documents which Najib seeks to admit were already available to him while the trial was on-going.
Apart from the usual rules which govern the admission of fresh evidence and an assessment of whether Nazlan was indeed sufficiently “involved” to be a potential witness as claimed, the case raises several important questions surrounding the recusal of judges which the Federal Court may have to look at.
One key question is how proximate the relationship between an arbiter and the factual scenario or the parties in the dispute must be before a potential conflict of interests situation is triggered.
The 1MDB saga has had more than its fair share of recusals and requests for judges to step aside. Questions remain whether some were legally justified or not.
The judges and judicial commissioners who have recused themselves from 1MDB-linked cases are (clockwise from top left) Sofian Razak, Wan Ahmad Farid Wan Salleh, Liza Chan, Adlin Majid, Arief Emran Arifin and Quay Chew Soon.In July 2018, the Malaysian Bar objected to High Court judge Sofian Razak hearing Najib’s SRC criminal case as his brother was an Umno state assemblyman in Pahang.
Last month, judge Wan Ahmad Farid Wan Salleh also recused himself from hearing an application for Queen’s Counsel Jonathan Laidlaw to represent Najib in the Federal Court as his brother is an Umno member.
In June 2021, judicial commissioner Liza Chan recused herself from a civil suit taken out by 1MDB against Najib based on her friendship with him despite them not having been in contact for several years.
JCs Adlin Majid and Arief Emran Arifin also recused themselves as the law firms where they had practised before their appointment had acted for 1MDB and SRC even though they themselves were not involved.
Another JC, Quay Chew Soon, voluntarily notified parties in a 1MDB-related civil suit of a potential conflict for the same reason.
Other related questions may also need consideration, including when and in what circumstances will disclosure become obligatory; when, how and to whom must it be made; and how much disclosure is necessary.
Presently, judges are left to navigate such matters on their own, guided no doubt by long established principles of natural justice, but invariably interpreted according to their own conscience. The result is a lack of uniformity, and in some cases, incoherence.
Perhaps, the longer-term solution may be to draw up a code of conduct to govern the subject. - FMT

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