Rosmah's 11th-hour bid to recuse trial judge dismissed

Monday 29 Apr 2024

KUALA LUMPUR (Sept 1): Datin Seri Rosmah Mansor failed on Thursday (Sept 1) in her 11th-hour bid to recuse judge Mohamed Zaini Mazlan from presiding over her graft trial pertaining to the RM1.25 billion solar hybrid project for 369 rural schools in Sarawak.

Dismissing her application in the High Court, Mohamed Zaini said the two documents on which the application was based were opinions written by the court’s research team, which were neither prepared for him nor prepared on his instructions.

"They remain just that, opinions. They are not my grounds nor did I seek to rely on or use them as a working draft for my judgement.

"I hope the research division will forgive me for saying this. But I did not read their opinion. I did my own research and was assisted by counsel in this case through their well written submissions," he said.

"Truth be told, I have always done my own work as laborious as it is," he said, adding that he has written more than 200 judgements to date and they were all written by himself.

"Anyone can form their own opinions but at the end of the day, the only opinion that matters is my own that will form the basis of my decision," he said.

He added that many don't realise how difficult the job of a judge is.

"We are not out here to be popular or make popular decisions. We are here to dispense justice," he said, adding that he bore no prejudice to Rosmah or anyone appearing in his court.

He said that if he is wrong in his judgement, the appeal court can rectify the decision.

"Whatever personal feelings we have, we leave them at the door once we step onto the bench," he said.

Earlier, he quipped: "Sorry if I kept everyone waiting; I couldn't find anyone to write my judgement so I had to write my own," drawing laughter from the reporters at the videolink room.

The judge then proceeded to deliver the much-anticipated verdict, which had to be delayed as the court dealt with the recusal application first.

It is understood that Rosmah, the wife of former premier Datuk Seri Najib Razak, had filed the application on Tuesday (Aug 30) afternoon.

Application based on ‘leaked ‘judgement'

Besides the trial judge's recusal, she also sought to recuse Mohamed Zaini from hearing or making a decision on the case. She has also asked for a stay order on the announcement of her verdict until the disposal of the application or until the completion of police investigations.

Her application revolves around the purported "leaked judgement" last Friday (Aug 26), which is currently subject to police investigations.

She also cited articles carried by fugitive blogger Raja Petra Kamarudin’s Malaysia Today portal, where one article contained a link to download the alleged 71-page "judgement" prepared by another party. The document contained two separate "judgements" allegedly prepared by the High Court's research unit.

In her application, Rosmah said the existence of the alleged "judgement" has directly or indirectly caused her to lose confidence in the trial judge.

'Judicial research was an accepted practice'

Sri Ram, in a brief submission, asked if the defence would be making similar application if the "leaked judgement" pronounced Rosmah as acquitted. Jagjit replied that he would.

Sri Ram said the crux of the issue is whether the trial judge's decision would be independent and that there was insufficient material before the court to reach that conclusion.

"The threshold for establishing bias has not been met," he said.

He argued that the system of judicial research was a practice "accepted and employed" in the US and also many Commonwealth countries.

"Singapore has a system of judicial law clerks who write opinions for the judges. Similarly, law clerks in the US Supreme Court write opinions for the justices of the Supreme Court. The question is whether that opinion is the judgement of the court," he said.

Sri Ram, a former federal court judge, said he was also offered a research clerk but declined because that was not his inclination.

He submitted that the "leaked judgement" is not an attempt to influence the trial judge. Rather the documents were opinions of the writers equivalent of judicial law clerks.

"Even if your Lordship requested for the opinions written by the research unit, even if you have gone through it and produced your judgement, it would be perfectly in order," he submitted.

Quoting case laws, he argued that if the trial judge agrees with any research papers he had been given, then the judge is entitled "as a matter of pure judicial practice to employ it as part of [his] judgement".

"That does not make you a non-independent judge. That does not bring any discredit to the judicial system.

"The important point is whether objectively speaking, the accused has received a fair trial and the views that your Lordship is about to pronounce — which all efforts are being to prevent — are your own view, that's all," he said.

‘Relying on Raja Petra's articles, seriously troubling’

Sri Ram also said that Rosmah's application relied on Raja Petra's articles and it was "seriously troubling".

"In my respectfully submission, I have these comments to make [about the writer of the articles]. He is a fugitive of justice. Secondly, he is a rogue journalist and thirdly, his views alter according to how he is paid and my learned friend described the two research papers as trash and that is the most apt description of Raja Petra Kamaruddin's [articles]; it is trash," he said in his submissions that lasted 16 minutes.

Defence: "Leaked documents" are draft judgements, not opinions

Earlier, during submissions, Mohamed Zaini asked Jagjit to clarify how he would categorise the "leaked documents". To this, Jagjit answered he would call it draft judgement prepared for the court.

Justice Zaini: Do you see these two documents [as] opinions or draft judgements.

Jagjit: [I would say it is] draft judgement.

Justice Zaini: Are you insinuating that I would therefore use this in my judgement.

Jagjit: I can't insinuate. [That is why we are saying] there is a real danger of bias.

During Jagjit's submissions which lasted for about 1 hour 50 minutes, the senior counsel said he was confident that the "leaked judgement" was not written by Mohamed Zaini, as the style and language was different from the judge's previous judgements.

He then added that it is prepared by more than one person. He pointed to the words "we submit" in the document and persistently questioned who these "we" were.

However, he argued that as the documents were circulated in social media and "found its way to the length and breadth" of the nation, they were now dealing with the issue of perception.

"The question I ask myself is no doubt Your Lordship won't be influenced by this but since it has come out, what do we do about it, we have to face it and deal with it," he said.

He said that he was looking at the details of the leaked documents, not as a lawyer but rather from the perspective of an ordinary, reasonable man. As such, it appeared as there was a real danger of bias.

He added that Rosmah is entitled to vent those reasons before the court.

He also pointed out that the prosecution did not make averments to say that the documents were fake.

Rosmah, 70, is charged with soliciting RM187.5 million from Jepak Holding Sdn Bhd’s former managing director Saidi Abang Samsudin for the RM1.25 billion project that was awarded by the Education Ministry between April to August 2016.

She was also accused of receiving two payments of RM5 million and RM1.5 million from Saidi — at her private residence in Jalan Langgak Duta and at the then prime minister’s official residence in Seri Perdana between Dec 20, 2016 and Sept 7, 2017.

The prosecution team also included deputy public prosecutors Ahmad Akram Gharib, Mohd Mustafa P Kunyalam and Poh Yih Tinn.

Also in Rosmah’s defence team were Datuk Akberdin Abdul Kader and Azrul Zulkifli Stork.

The Edge is covering the trial live here.

Users of The Edge Markets app may tap here to access the live report.

Edited ByS Kanagaraju

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