PUTRAJAYA (Feb 22): The views of a spouse per se cannot be grounds for recusal, the prosecution argued before the Federal Court on Wednesday (Feb 22) in a review application hearing of a previous apex court bench's decision to uphold former prime minister Datuk Seri Najib Razak's conviction, sentence and fine by the High Court over criminal charges relating to SRC International Sdn Bhd.
This, ad hoc prosecutor Datuk V Sithambaram said, is especially when the alleged influence on Chief Justice Tun Tengku Maimun Tuan Mat is based on a posting that was made more than four years before Najib’s prosecution in the SRC case.
“The respondent (prosecution) submits the views of a spouse per se cannot be a ground for recusal. There must be circumstances that can show the interest, in this case, the view of the spouse is so close and direct that renders the interest or views of the spouse indistinguishable from the judge,” he said.
Sithambaram further contended that the Facebook posting by the CJ’s spouse Datuk Mohd Zamani Ibrahim is clearly a mere personal commentary on the political scenario that led up to the 14th general election results in 2018. Plus, it was some four years ago.
“It is incredible that Najib only found out of this Facebook posting on Aug 22, 2022, the eve of the continued appeals hearing on Aug 23. The filing of the recusal application was a desperate last-minute attempt to scuttle the appeals.
“What a phenomenal coincidence that Najib only found out from a public Facebook posting hours before the conclusion of the appeal hearing on Aug 23. The truth is they knew of the Facebook posting but had found it to be unworthy of a recusal application earlier. The 11th hour application is pure desperation to adjourn the appeals,” Sithambaram added.
He observed the post does not show that Zamani had any personal animosity towards Najib but it was general comments of the “Rakyat” on Facebook.
Moreover, he pointed out that there is no nexus between the Facebook post published four years ago on May 11, 2018 and Najib’s appeals before the Federal Court on Aug 23, 2022.
“The posting clearly cannot support Najib’s application for recusal of the CJ. Najib’s allegation of biasness based on the posting is unfounded considering that when it was published, there were no criminal proceedings pending against him involving the present SRC appeals.
“The criminal proceedings against Najib only commenced on July 4, 2018 and Aug 8, 2018 that is approximately three months after publication of the posting. In any event, it is evident that the said last minute application for recusal is clearly an attempt to scuttle the progress of the former premier’s appeals at the Federal Court,” he said.
Puzzling that application to recuse was made by Hisyam
Sithambaram further said Najib also failed to establish that Tengku Maimun’s views on Najib’s appeals were impacted by what her husband had written.
“Nor could Najib show that the posting was in any way relevant to the substantive appeal that would render Zamani’s views to influence the mind of the honourable CJ in the SRC International appeals."
On Tuesday, Najib’s lead counsel Tan Sri Muhammad Shafee Abdullah raised the issue of Zamani’s Facebook posting and said Tengku Maimun should have chosen to recuse herself from hearing the appeals because of Zamani’s posting which was critical of the former PM.
Shafee argued that as Zamani’s Facebook posting was critical of Najib, 1Malaysia Development Bhd and its former subsidiary SRC, it was reason enough for Tengku Maimun to discharge herself from presiding on the bench as it put her in a position of conflict of interest.
The senior lawyer said this was akin to the second case of extradition to Spain of former Chilean dictator Augusto Pinochet, where the House of Lords struck out an earlier decision as Lord Leonard Hubert Hoffman, who was part of the five-member bench, had not declared his interest or links to Amnesty International which was one of the intervenors in the case.
Sithambaram further submitted that Najib made the application on the eve of the appeal and what was even more perplexing about the application for recusal was that it was submitted by Messrs Teh Poh Teik & Co — the firm led by its lead lawyer Hisyam Teh Poh Teik, who had asked to be discharged from the case on Aug 18, 2022.
Hence, he added it was clear that the application to recuse made at the 11th hour by a counsel who had earlier applied to discharge himself after not gaining an adjournment is an attempt to derail the hearing of the appeal and to seek an adjournment.
This is why, Sithambaram said, the apex court ruled that this was a frivolous and vexatious application that was filed just before the appeal was scheduled to be heard and it was meant to scuttle the appeal.
The hearing of the review application will resume next Monday (Feb 27) and Tuesday (Feb 28) before a five-member bench led by Chief Judge of Sabah and Sarawak Datuk Abdul Rahman Sebli.