Najib seeks to exclude top four judges from panel hearing review in misfeasance suit

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PUTRAJAYA (Aug 6): Datuk Seri Najib Tun 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 Tun Dr Mahathir Mohamad on the latter's (Dr Mahathir's) tort of misfeasance in public office lawsuit.

Najib's lawyer Datuk Wira Mohd Hafarizam Harun told the court that the appointments of Chief Justice Tan Sri Richard Malanjum, Court of Appeal President Tan Sri Ahmad Maarop, Chief Judge of Malaya, Tan Sri Zaharah Ibrahim and Chief Judge of Sabah and Sarawak Datuk David Wong Dak Wah were on the advice of Dr Mahathir.

He had raised the preliminary objection on the composition of the panel saying it was to avoid any perception of likelihood of bias and also in the interest of justice particularly public confidence on the judiciary.

Mohd Hafarizam said there were also "talks" by the public following articles by the former Chief Justice Tun Abdul Hamid Mohamad questioning whether there were two chief justices between July 11 and July 31, this year as the former Chief Justice Tun Raus Sharif’s official term ended on July 31 while Malanjum was appointed as Chief Justice to replace Raus on July 11.

Malanjum who chaired the seven-man bench asked whether the issue was raised in the previous hearing to which Dr Mahathir's counsel Mohamed Haniff Khatri Abdulla responded that the same point was taken by him but it was in respect on the constitutionality of Raus's three-year extension as Chief Justice.

Mohamed Haniff said subsequently Raus had decided not to recuse himself from presiding on the five-man bench to hear his clients' leave to appeal the application.

He (Mohamed Haniff) said the top four judges should not be recused from hearing the review application.

Malanjum did not decide on the preliminary objection but he later agreed to adjourn the review hearing application pending disposal of another matter which also raised a similar issue on the definition of a public officer.

He said the court would fix the new hearing date for the review application after the Federal Court hears on Nov 5, this year the application for leave to appeal by Damansara member of Parliament Tony Pua Kiam Wee in a bid to reinstate his misfeasance in public office lawsuit against Najib.

Mohamed Haniff had earlier suggested to the court to wait for the outcome in the Tony Pua's leave to appeal the matter and Mohd Hafarizam supported the suggestion.

He also told the court that the Attorney-General was interested to be included as amicus curiae (friend of the court) in the review application.

Dr Mahathir, 93, and former Batu kawan Umno vice-chief Datuk Seri Khairuddin Abu Hassan filed the application to review the Federal Court's earlier decision in refusing to grant them leave to appeal, in a bid to reinstate their suit against Najib which was struck out by the High Court and Court of Appeal.

Dr Mahathir, Khairuddin and former Langkawi Wanita Umno member Anina Saadudin sued Najib on March 23, 2016, accusing him (Najib) of having committed misfeasance in public office and acting in breach of his fiduciary duty over the management of sovereign investment fund 1MDB.

On April 28 last year, the High Court allowed Najib's application to strike out the suit, ruling that the prime minister was not a public officer but a member of the administration.

On Aug 30, last year, the Court of Appeal dismissed the appeal brought by Dr Mahathir, Khairuddin, 55, and Anina, 43. On Feb 27, this year, the Federal Court three-man bench led by Raus dismissed Dr Mahathir and Khairuddin’s applications for leave to appeal.

Anina’s application for leave to appeal was struck out by the Federal Court on April 16, this year.

After the court proceedings, Mohamed Haniff told reporters Attorney-General Tommy Thomas had informed him in a meeting on Friday that the Attorney-General's Chambers was interested to apply to the court to become amicus curiae in the review application.

He however said he had written to the court to seek for an adjournment of the hearing of the review as he did not have enough time to serve the cause papers to the Attorney-General's Chambers.