The crux of the issue in the claim of bias by Najib’s lawyers

The defence team simply can’t escape the ramification that they’re casting aspersion on the judiciary as a whole.

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Published by AstroAwani, image by AstroAwani.

What’s the crux of the matter which lies at the heart of the claim of bias on the part of Yang Arif Justice Dato’ Mohd Nazlan Ghazali as then judge of the first instance (High Court) as well as Yang Amat Arif Chief Justice Tun Tengku Maimun Tuan Mat as personifying the apex court (Federal Court) by former Prime Minister Najib Razak’s lawyers – as part of the judicial review made under Rule 137 of the Rules of the Federal Court (1995)?

Under Rule 137, the Federal Court enjoys “… inherent powers … to hear any application or to make any order as may be necessary to prevent injustice or to prevent an abuse of the process of the Court”.

In addition to claiming conflict of interest on the part of Justice Nazlan, Najib’s lawyers claimed, inter alia, that there was breach of natural justice by the Federal Court.

The sitting Federal Court bench had refused to allow for adjournment of the trial process itself so as to in turn allow the defence more time to prepare given the change of lawyers (from Muhammad Shafee Abdullah to Hisyam Teh Poh Teik) halfway through.

This came after the same bench denied an application by the defence to adduce more evidence relating to the conduct of Justice Nazlan (now a judge of the Court of Appeal).

Hence, the defendant (now convict) was said to be deprived of a fair and impartial trial that owed its origins all the way back to the initial biasness on the part of Justice Nazlan, purportedly.

Basically, the defence wanted a delay in the trial process under the ostensible justification to adequately prepare for what’s a complex and intricate case.

The crux of the issue (as in) now is whether there’s a chain of biasness right from the beginning of the trial process all the way through to the end.

That is to say, from the alleged and rather unproven claim of bias in the High Court which then supposedly led to the breach of natural justice in the denial of adjournment by the Federal Court and, by extension, resulting in the final judgment confirming the guilt of the defendant.

In other words, arguably, it’s submitted that for the claim of the defence to succeed, it has the burden to demonstrate that there’s an inherent or institutional bias against the defendant (as a politician and former Prime Minister), such that he was never able to secure a fair and impartial trial in the first place.

In other words, what’s known in common law as “pre-determination”.

That is, whether the judges as a whole (or collectively) had already made up their mind (before even weighing of the evidence and arguments).

With nine judges in total and four out of five judges for judicial review, it’s now “established”, therefore, that for the claim of “bias” to have any credibility, the implication is that the defence would have to call the entire institution into question.

This on the basis of some sort of pre-determination.

Hence, that the judiciary is in fact politicised in and of itself (i.e., even without external interference from the political masters of the day).

This perhaps to compensate for the notorious reputation popular among proponents of liberal democracy and the rule of law that the judiciary was susceptible to heavy manipulation by the then ruling class of the day – of which Najib Razak is the last and final embodiment/personification.

More so when the defence didn’t even call for judicial review in the first place and only proceeded to do so when the final avenue of appeal has been exhausted.

Pre-determination is normally regarded as conceptually distinct from bias – having/sharing the same logical status.

It simply means that the decision-maker had already made up his/her mind from the get go, come what may, regardless. This even whilst there’s no conflict of interest.

What then is bias – as in apparent bias?

As it’s normally the case for (individual) decision-makers, and especially pertinent to the issue involving Justice Nazlan.

To understand that, we need to re-discover the fundamental principles as established in English common law that has shaped our local Malaysian judicial context via two eminent and principal cases.

The cases of R v Gough [1993] and Porter v Magill [2002] – which deals with apparent bias as under consideration here.

Apparent bias can be defined as the perception that, e.g., a judge may have been bias.

This is important and critical – for justice must not only be done but seen to be done.

The test for apparent bias is in the form of a danger of real bias, as propounded in Gough and approved by the Federal Court in e.g., Majlis Perbandaran Pulau Pinang v Syarikat Berkerjasama-sama Serbaguna Sungai Gelugor dengan Tanggungan [1999]; Mohamed Ezam bin Mohd Nor & Ors v Ketua Polis Negara [2002]; Dato’ Tan Heng Chew v Tan Kim Hor [2006], etc.

The test is objective.

And not subjective.  

The court isn’t interested in inquiring into the decision-maker’s state of mind.

This as perceived by the court in embodying the objective decision-maker and only, by extension, representing the reasonable observer.

As Justice Hasan Lah held in Bar Council Malaysia v Tun Dato’ Seri Arifin bin Zakaria & Ors (Persatuan Peguam-Peguam Muslim Malaysia, intervener) and another [2020]: “The current test is as distilled by Lord Hope in Porter v Magill [2002] … The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility [i.e., either/or] that the tribunal was biased”.

This includes or is applicable to written judgments also, no less (see, “Biased In Writing: Can Judges Be Recused On Grounds Of Bias Arising From A Written Judgment?”, Feisan Villana Minin, The Malaysian Litigator, January 27, 2021).

As Porter v Magill represents a modified version of Gough to bring it more in line with the Strasbourg jurisprudence (i.e., of the European Court of Human Rights or ECtHR) but has never been repudiated in Malaysian common law, it can be argued that the former must be understood in light of the latter. 

The judiciary represents and embodies the “reasonable observer” by way of a “two-step” process. That is, where the objectivity of the judges is aligned with the objectivity of the “fair-minded” observer.

As stated by Lord Goff of Chieveley in Gough, “… the court in cases such as these personifies the reasonable man”.

Surmise or conjecture is never enough. There must exist circumstances which can be objectively evaluated as having given rise to a situation where it’s possible that there was bias, as per the late Former Court of Appeal judge Datuk Chan Nyarn Hoi (see, “On judicial bias”, N H Chan, The Malaysian Insider, March 2, 2010).

Justice Datuk Chan had authored two books entitled, Judging the Judges and How to Judge the Judges.

In other words, applying the law to the case of SRC International Sdn Bhd or PP (Public Prosecutor) v Dato’ Sri Mohd Najib bin Hj. Abd Razak [2020], there must be some linkage between Justice Nazlan’s role as general counsel and secretary for Maybank and his role as sitting judge of the trial of first instance for the case.

Here, mere suspicion will not do. But the suspicion must be “strong enough” to undermine confidence in the decision-making process and ultimately the decision or judgment itself.

That is to say, once again, a question of possibility.

Not probability which deals with a scale of, e.g., on a 1% to 100%.

A high suspicion of even 60% chance of bias isn’t enough.

This is because probability is reducible to subjectivity. Meaning, predisposition as a complex of psychological processes is virtually impossible to quantify.

Possibility, on the other hand, as being either bias or not at all can be objectified (i.e., qualified as such) to one’s satisfaction.

Hence, to be satisfactorily qualified as fulfilling the conditions of bias, any allegation of (apparent) bias can’t be simply a matter of perception without any inter-relationship (causation, correlation) between that and the circumstances.

Otherwise, we’d be entering into the realm of parallel universe or coincidence.

That is, pure speculation.

The move, therefore, has to be made from speculation to demonstration.

The suspicion of bias has to be – legally – demonstrated.

It must be demonstrated that there’s a connection (linkage/chain) from the original ground giving rise to the suspicion to how the suspicion is “confirmed” (i.e., how the bias is/can be played out or manifested).

There must be a demonstration that the decision-making of the judge will be readily influenced by his/her background/external circumstances.

This based on a set of:

  • pre-qualified (immediate) criteria/conditions (e.g., that Justice Nazlan is related to the Attorney-General); and/or
  • qualified (intermediate) criteria/condition (e.g., that Justice Nazlan was formerly the counsel on behalf of the Maybank suing SRC International in a civil case).

The test then isn’t to work out the implications of bias from the judgment to the original grounds giving rise to suspicion of bias – speculation.

This can be readily inferred from the two vantage points:

  1. the appeal of the High Court judgment; and
  2. the (two) application(s) to adduce more evidence.

It’s the opposite.

The reviewing court must be satisfied that the external circumstances of the judge could then/may have resulted or did result in bias in the first place – demonstration.

In the case of Justice Nazlan:

  1. There was no conflict of interest (direct or indirect).

Circumstances

During his tenure as general counsel, Maybank had no links with SRC International. This includes any legal proceedings.

Any decision regarding the setting up of SRC International and loans, even if conceded as relevant for argument’s sake, isn’t and can’t be within the purview of the general counsel cum secretary but the relevant decision-makers which is also subject to a stringent process of accountability and layers of approval.

It’s not a one-man show.

At the same time, Maybank had no knowledge that the loan to Putra Perdana Development Sdn Bhd (PPD) will be transferred to SRC International. This information was only revealed during the trial.

Furthermore, SRC International and PPD are two separate legal entities.

  • His judgment has been confirmed/re-affirmed unanimously by the Court of Appeal and Federal Court.

Circumstances

Both the Court of Appeal and the Federal Court were thoroughly satisfied that on the point of fact and on the application of the law to the facts, the High Court judge had “… undertook a very detailed and objective analysis of the evidence to support his findings at the close of the prosecution case” (“Grounds of judgement for Najib’s SRC final appeal”, The Edge Markets, August 23, 2022).

In conclusion, the allegation by Najib’s defence team of bias on the part of Justice Nazlan and, by extension, the Federal Court as embodied by Chief Justice Tun Tengku Maimun is simply without any objective and fair basis at all.

The defence team simply can’t escape the ramification that they’re also casting aspersion, at least indirectly so, on the judiciary as a whole, notwithstanding the minority/dissenting judgment of the judicial review.

Well, that’s one possible perception.  

Jason Loh Seong Wei is Head of Social, Law & Human Rights at EMIR Research, an independent think tank focussed on strategic policy recommendations based on rigorous research.

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