Transferred judge will hear Najib vs Mkini case, appeal court rules

The Court of Appeal today dismissed Malaysiakini's appeal for the recusal of the judge from hearing the suit filed by Prime Minister Najib Abdul Razak against the news portal.

With this, Seremban High Court judge Kamaludin Md Said will proceed to hear the case.

Court of Appeal judge Mohd Zawawi Mohd Salleh, who led the three-member bench, ruled that the news portal's application was filed out of time.

"Furthermore, the application to review the Chief Judge of Malaya Zulkefli Ahmad Makinudin's decision is not amenable," Justice Zawawi said.

The other judges sitting with him were Justice Vernon Ong and Justice Abdul Rahman Sebli.

Senior federal counsel Amarjeet Singh, who appeared for Justice Zulkefli and two others who were named as respondents applied for RM30,000 as costs.

Mkini Dotcom Sdn Bhd and two other appellants, applied for no costs. However, Justice Zawawi imposed a cost of RM10,000.

The decision was made despite Malaysiakini counsel Malik Imtiaz Sarwar submitting that the application is made to maintain the integrity of the judiciary undere the circumstances of the case, as it was filed in Kuala Lumpur and yet the matter is now transferred to Seremban.

"This is despite the trial of the case not having begun and there are other civil court judges who can hear the case," Malik Imtiaz (photo) said.

“The appellants view this direction (to have Justice Kamaludin hear the matter) as not being consistent with the applicable legal framework as well as practice. Pre-trial directions have yet to be given.

“There is no basis for a direction under Section 18(2), Courts of Judicature Act 1964 or Order 35 Rule 11 of the Rules of Court 2012” he added.

Najib filed suit in 2014

Mkini Dotcom, which operates the news portal, named Justice Zulkefli, Najib and Umno organising secretary Abdul Rauf Yusof as the respondents in the case.

Najib and Abdul Rauf filed the suit on June 3, 2014, and the case was managed by deputy registrar of KL High Court Norfauzani Mohd Nordin on June 18, July 8 and Dec 2, 2014.

Mkini Dotcom filed its defence and counter-claim on Dec 17 and the reply and defence to this counter-claim was filed on Feb 9, 2015. On or about June 18, Mkini Dotcom got to know that Justice Kamaludin, who was then a judicial commissioner, was appointed to hear the suit.

Mkini Dotcom filed an application to recuse the judge on grounds of conflict of interest as Najib advises the Yang di Pertuan Agong on the appointment of judges under Article 122B(1) and the Agong is bound to act on the advice by virtue of Article 40 of the Federal Constitution.

After this application was made, Kamaludin was confirmed as a High Court judge and Mkini Dotcom withdrew its application on Nov 14, 2014, but Justice Kamaludin did not hear the this matter on the notice of withdrawal.

On Jan 1, 2015, Justice Kamaludin was transferred from the civil division of High Court in Kuala Lumpur to the High Court in Seremban.

On Feb 13, 2015, Mkini Dotcom was made to understand that Justice Kamaludin had been directed to hear and enter judgment on the application made by Najib, even though the judge was no longer part of the civil division of the High Court in KL.

Malik Imtiaz submitted that there was no legal basis for any direction to a judge, other than a judge of the civil division of the High Court in KL, to hear the enter judgment application.

Several letters sent

On June 22, then KL High Court judge Asmabi Mohamad dismissed Mkini Dotcom's judicial review application by refusing to grant leave on grounds that the application was filed out of time.

Mkini Dotcom sent several letters to the Chief Judge of Malaya and its special officer between March 16 and April 1, 2015. They confirmed that Justice Kamaludin would hear the case, despite being transferred to Seremban.

On June 12, 2015, Mkini Dotcom filed the judicial review application, citing that it was adversely affected by the decision and that this would affect the company’s entitlement to a fair trial.

Malik Imtiaz submitted today that Mkini Dotcom did not file its judicial review application out of time as it wanted to clarify and obtain the Chief Judge's view on the first decision made on June 18, 2014.

It was only on March 16, 2015, that Justice Zulkefli, through his special officer replied and communicated that Justice Kamaludin would be the judge hearing the case.

“Mkini Dotcom's actions were well within their rights to file the application under the judicial review framework.

“Furthermore the decisions made by Justice Zulkefli, which concern the distribution of business among judges under Section 20 of the Courts of Judicature Act, are decisions that are amenable under judicial review.

“There is growing body of case law in which the question of amenability to judicial review has been considered and one such case is Singapore's Manjit Singh and another vs Attorney-General,” Malik cited.

However, Amarjeet told the court that Mkini Dotcom's application was filed out of time by 29 days, since the decision made by the deputy registrar on June 18, 2014, should be considered and not the March 16, 2015, date.

Amarjeet also argued that Section 20 of the Courts of Judicature Act renders that a decision made by the Chief Judge is not amenable. -Mkini