Nik Hashim FCJ:

(The respondent's application to recuse Augustine Paul FCJ from hearing the criminal appeals NO 05-130-2008 (B) and NO 05-143-2008 (B))

[1] A three-member panel consisting of Nik Hashim, Augustine Paul and Zulkefli FCJJ, was empanelled by the learned Chief Justice to hear the Federal Court Criminal Appeals NO 05-130-2008 (B) (the 1st appeal) and NO 05-143-2008 (B) (the 2nd appeal) on 11 February 2009 at Putrajaya. The 1st appeal is the appellant's appeal against the High Court's decision allowing the respondent's application for a writ of habeas corpus for his release on 7 November 2008 whereas the 2nd appeal is the respondent's cross-appeal specifically against the High Court's decision in holding that s 8 of the Internal Security Act 1960 did not contravene the Federal Constitution.

[2] When both the appeals were called up for hearing on 11 February 2009, learned counsel for the respondent, Encik Malik Imtiaz Sarwar applied to recuse my learned brother Augustine Paul FCJ from hearing the appeals on the grounds that the respondent had been critical of the learned judge in his website in 2001 and that there might be a real danger of bias on the part of the learned judge if he sat on the panel to hear the appeals. He also said that as a High Court judge, Justice Augustine Paul had dismissed the respondent's habeas corpus application in 2001 and that the Federal Court had allowed his appeal against the order made. Learned counsel then applied for a short adjournment of the hearing to enable him to submit a formal application and to file documents in support of the application.

[3] The learned Senior Deputy Public Prosecutor, Tun Abd Majid, objected to the application for the adjournment and argued that the question of bias did not arise in this case and urged the Court to dismiss the recusal application.

[4] Having heard the parties, we at first dismissed the application for the adjournment, but upon reconsideration while still on the bench, we allowed the application for time for the learned counsel for the respondent to file a formal application by the next day ie, 12 February 2009 and we set Monday 17 February 29 at 9.30am as the date and time for the continuation of the hearing of the recusal application. The application could not be set down for continued hearing on 12 and 13 February 2009 (Thursday and Friday respectively) as on those two dates the presiding judge Nik Hashim FCJ had to be in Kota Kinabalu together with the learned President of the Court of Appeal and the learned Chief Judge of Malaya to hear two election petition appeals NO 01(F)-19-2008 and NO 01(F)-20-2008.

[5] The respondent's formal application which was filed was marked as encl 17(a). At the outset of the continued hearing on 17 February 2009, my learned brother Augustine Paul FCJ informed the Court that he wished to recuse himself from the recusal proceeding as he considered that the nature of the application would not make his presence on the bench appropriate and his absence on the bench would be in line with the principle that justice must not only be done but also must be seen to be done. With the agreement of my learned brother Zulkefli FCJ, I then allowed my learned brother Augustine Paul FCJ to leave the bench leaving the two of us to continue with the hearing of the application.

[6] Then, learned counsel for the respondent contended that the hearing would be unconstitutional as the application could not be heard by the two remaining judges on the ground that s 74 of the Courts of Judicature Act 1964 (the Act) requires the sitting of three Federal Court Judges for a hearing. The section states:

(1) Subject as hereinafter provided, every proceeding in the Federal Court shall be heard and disposed of by three Judges or such greater uneven number of Judges as the Chief Justice may in any particular case determine. (emphasis added)

[7] We dismissed the learned counsel's contention and held that we were constitutionally empowered to