Judge dismisses Dr M's bid to recuse her
KUALA LUMPUR: High Court Judge Datuk Azizah Nawawi remains as the presiding judge for Prime minister Tun Dr Mahathir Mohamad's lawsuit to nullify the Royal Commission of Inquiry (RCI) findings on Bank Negara's foreign exchange losses in the 1990s.
Dr Mahathir had applied to recuse her from hearing the case on grounds that the judge had previously presided over another RCI-related case that he had an interest in.
The case pertained to Dr Mahathir's application for leave for judicial review to challenge the judge's decision on Aug 17 last year to revoke the appointment of Tan Sri Mohd Sidek Hassan and Tan Sri Saw Choo Boon as the RCI's chairman and member respectively.
Azizah in dismissing Dr Mahathir's application to recuse her, said the plaintiff must show that there was a real danger of bias and not just a reasonable suspicion of bias on the part of the court to hear the suit.
"In this application, the real danger of bias has not been made out as the subject matter of this case is different from the RCI-1 case.
“In RCI-1 case, the subject matter is on the composition of members of the RCI, whereas in the present application it is challenging the findings of the RCI for failing to include in the report, inter alia the entire notes of proceedings including the oral testimonies of the witnesses, all applications made by the parties (written or oral) and the entire submissions of the parties,” she said.
On the issue raised by the counsel that the court had decided against Dr Mahathir in the previous case, Azizah stressed, the said decisions were based on the legal principles in the country and that Dr Mahathir had also appealed against the decisions.
"On the other hand, this court is minded of the dangers in abdicating its judicial function and duties if this court was to simply allow any application for a recusal,” the judge said.
The judge made the ruling in chambers during which Dr Mahathir was represented by counsel Mohd Irzan Iswatt Mohd Noor, and the nine defendants, by senior federal counsel Noor Fadzila Ishak.
The defendants comprise RCI chairman Tan Sri Mohd Sidek; RCI members Datuk Wira Kamaludin Md Said, Datuk Seri Tajuddin Atan, Tan Sri Saw Choo Boon, K.Pushpanathanan and Datuk Dr Yusof Ismail; as well as then prime minister Datuk Seri Najib Razak and the former Cabinet and the government.
Dr Mahathir filed the suit in December 2017, seeking a declaration that the report by RCI on Bank Negara Malaysia's forex trading losses in the 1990s was null and void as it excluded legal documents of witnesses and notes of proceedings.
He contended that the RCI's report was illegal, incomplete and defective as it lacked proceeding notes, and written and oral submissions through transcription or video recording.
He is also seeking a declaration that any report by a Royal Commission of Inquiry set up under the Commission of Enquiry Act 1950 would only be legal and in order if it had all the written statements by the witnesses who testified in the proceeding, the proceeding notes, the submissions, and the findings.