Senior lawyer: ‘Strange’ argument by Petronas to seek JC’s recusal

Shankar (right) speaking to Gabungan Parti Sarawak secretary-general Datuk Alexander Nanta Linggi at the Kuching High Court complex today (Jan 14, 2020).

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By Peter Sibon

KUCHING, Jan 13: Judicial Commissioner (JC) Christopher Chin should be allowed to hear the case brought by the Sarawak government to sue Petronas for unpaid 5 per cent State Sales Tax (SST) amounting to some RM1.3 billion, opines senior lawyer Shankar Ram Asnani.

As such, he found it strange for Petronas to ask Chin to recuse himself from hearing the case at the Kuching High Court here today.

“As far as the law is concerned, the JC can hear this case and he has the full powers of a High Court Judge. There is no prohibition or inhibition preventing him from functioning as a full-fledged judge. If you want to disqualify a judge, you must show the likelihood of (him) being biased. You must be able to show real likelihood of bias, as a JC.

“He has the full powers of a High Court judge and he can discharge the full function, pronounce and determine all the issues as a High Court judge can. So, if there is no element of bias, I don’t think this kind of application to recuse him should be entertained,” Shankar told DayakDaily here today.

Shankar, who has over 23 years of legal practice experience, asserted that a JC can perform the full function of a High Court judge.

“It is such that they serve until they are confirmed as a High Court judge. But it would be an affront for the whole system if such an argument is raised to say that if the JC decides one way or another, it may affect the JC’s confirmation or promotion to become a judge.

“That would not be correct (for me). Judges are there because they have sworn to act without fear or favour, according to law and guard the Constitution. So are they trying to say that before the JC becomes a Judge he is sworn to act not according to the constitution? Or is there a risk of such a thing? But after he is confirmed, as a judge he can act in any manner. Such kind of arguments cuts both ways, it’s like a double edged blade…

“Are you saying that the judge now can’t act without fear or favour or when he becomes a judge he cannot act without fear or favour or not according to the Constitution or according to the constitution?

“The Honourable JC (Chin) has been appointed and the authorities would have done a through and proper vetting. When he becomes a JC, and taken his oath to administer justice, he is given full respect here, unless there is something compelling, then you apply to recuse a Judge,” Shankar opined.

Shankar (standing second row, fifth right) with other Sarawak United Peoples’ Party (SUPP) leaders at the Kuching High Court complex today (Jan 14, 2020)

He reiterated that similar to Court of Appeal (CoA) judges, High Court judge appointments need the consent of the Prime Minister and are based on the recommendations of the Attorney General Chambers.

“So, are you are saying that the judges siting on CoA don’t decide properly or (depending on how) he decides on one particular way, he can be promoted to become a Federal Court Judge or elevated to become a Federal Court judge? This is some strange argument, isn’t it?” he reiterated.

Earlier today, the High Court fixed Jan 23 to decide whether Chin should recuse himself from presiding over the High Court case involving the Sarawak government suing Petronas for unpaid SST amounting to some RM1.3 billion. — DayakDaily