Richard Malanjum CJ (Sabah & Sarawak):

[1] Before us is an application by Raja Petra bin Kamarudin (Raja Petra) pursuant to r. 137 of the Rules of the Federal Court 1995 (RFC).

[2] It is connected to the pending appeal by the Minister of Home Affairs (Criminal Appeal No. 05-130-2008(B) and the cross-appeal by Raja Petra (Criminal Appeal No. 05-143-2008).

[3] The hearing of the appeal and cross-appeal came before a three-member panel consisting of Nik Hashim, Augustine Paul and Zulkefli FCJJ on 11 February 2009.

[4] At the outset of the hearing learned counsel for Raja Petra applied to recuse Augustine Paul FCJ. Basically the ground relied on was that there might be a real danger of bias on the part of the learned Judge since Raja Petra was critical of him in his website in 2001. It was also submitted that the judge had dismissed the habeas corpus application of Raja Petra in 2001 which was subsequently allowed by the Federal Court.

[5] A short adjournment was therefore applied to enable the filing of a formal application on the recusal. Initially the panel was inclined to dismiss the application for adjournment. However, on further consideration an adjournment was allowed on condition that Raja Petra had to file his application the following day, 12 February 2009.

[6] When the formal application on recusal came up for hearing on 17 February 2009 Augustine Paul FCJ voluntarily requested to be excused from hearing it. The reason was based on the principle that justice must not only be done but also must be seen to be done.

[7] The remaining members, consisting of two-member panel, then proceeded to hear the application despite the objection by learned counsel for Raja Petra that it would be unconstitutional to do so.

[8] The objection was summarily dismissed on the ground that they were constitutionally empowered to continue the hearing by virtue of s. 78 of the Courts of Judicature Act 1964 (CJA). Principally the two-member panel in their judgment dated 9 April 2009 and forwarded to us on 27 April 2009 took the position:

i. That the proceeding had already commenced on 11 February 2009 in which Augustine Paul FCJ participated in the exercise of discretion in allowing the application for adjournment by Raja Petra to enable him to file the formal application on recusal; and

ii. That the provision of s. 78 of CJA applied. The phrase 'illness or any other cause' does not attract the ejusdem generis principle. The word 'illness' does not create a genus so as to limit the general words 'any other cause' to 'causes of the same kind as illness which preceded it'. As such the temporary absence of Augustine Paul FCJ to attend the proceeding for the stated reasons would be permissible under the words "any other cause" in the section.

[9] On the recusal application itself, the two-member panel dismissed it after considering the arguments submitted. In their judgment the two-member panel was of the view that the basis of making the application, namely, 'there be a real danger of bias' was 'far-fetched and ludicrous' because:

i. It was Raja Petra who was critical to Augustine Paul FCJ to begin with in 2001 in his website;

ii. There was no response from Augustine Paul FCJ against the criticism nor any contempt proceeding taken against Raja Petra for the criticism; and

iii. As for the dismissal of the application for habeas corpus by Raja Petra by Augustine Paul FCJ it was held that a judge 'is not precluded from hearing a case against a person when he had in the past heard another case against the person if the facts in the cases are different'. It was also observed that in the previous habeas corpus application by Raja Petra the Judge did not 'go into the facts of the case as it was agreed by the parties in that case that the decision in one case that was being heard shall be binding' on the application by Raja Petra.

[10] Upon dismissal of the application the two-member panel invited back Augustine Paul FCJ to take his seat on the b