Petronas’ bid to recuse Kuching-based judicial commissioner in civil suit fails

Sulok Tawie
A Petronas petrol station in Subang Jaya December 19, 2018. ― Picture by Mukhriz Hazim

KUCHING, Jan 23 — Judicial Commissioner Christopher Chin Soo Yin today dismissed an application by Petroliam Nasional Berhad (Petronas) to recuse him from hearing a civil suit filed by the Comptroller of the State Sales Tax (SST) and the state government against the oil company over the non-payment of SST on the export of petroleum products in Sarawak.

He said the possibility of him being biased in hearing the suit does not arise.

“I, with hand over heart, rule that there is no real possibility of perceived bias by a fair-minded observer having knowledge of the facts, and I dismiss the defendant’s application to recuse me,” he said in his judgment.

Chin said the application, even with the avowed best intentions of Petronas, is an affront to Malaysia’s judicial system, and hence, frivolous and without merit.

He ordered Petronas to pay costs of RM50,000 to the plaintiffs.

“One good thing has emerged from this application for which I am grateful to Petronas. I now truly understand, and with sharp focus, the true meaning of discharging my judicial duties, without fear or favour,” he added.

On January 14, Chin heard Petronas’ application to recuse him from hearing the civil suit.

Petronas argued that because Chin sat as a judicial commissioner, his confirmation as the High Court judge depended very much on the prime minister’s advice.

According to state Attorney General (AG) Datuk Talat Mahmood Abdul Rashid, Petronas also argued that if Chin were to decide in favour of Petronas, he would receive his confirmation.

Talat said his side had no objection to Chin, a Sabahan, hearing the suit filed by the state government.

Chin was appointed the judicial commissioner a year ago.

In dismissing Petronas’ application, Chin said during his nine months on the bench, he can categorically state that he has never been instructed, hinted or urged by his “bosses”, the chief judge of Sabah and Sarawak or the chief justice, or by any judge for that matter, on how he should decide any dispute.

“Despite my lack of seniority and judicial experience I have full and unfettered independence in deciding all cases as I see judicially fit.

“I can also say, and as the plaintiffs have exhibited in their submissions, that the reported decisions I have made include decisions that do not favour the government of the day.

“Therefore, the public can be comforted, and it needs to be said that, the very best ideals of an independent judiciary are alive and well in Malaysia.

“Any attempt to subvert these ideals must be firmly resisted,” he stressed.

Chin said to suggest that judicial commissioners can be perceived as biased because of their temporary tenure and that their appointment and future depend on the prime minister is itself an affront to the judiciary.

He maintained that the judiciary in Malaysia is independent as asserted by Chief Justice of Malaysia Tan Sri Tengku Maimun Che Mat at the Opening of the Legal Year 2020 in Putrajaya on January 10, 2020.

“I should not be too eager to recuse myself,” Chin said.

He said judges should balance properly their competing duties as judges when recusal applications fall to be decided by them.

“Settled principles dictate that judges have a duty to sit and adjudicate on cases allotted to them, displaced only when there are objectively justifiable grounds for recusal, that litigants cannot judge shop and judges cannot case-shop and that the administration of justice is served as much by a fearless and confident judiciary as a fair judiciary,” Chin said.

The Comptroller of SST and the state government were represented by state AG, senior state legal counsel Datuk Fong Joo Chung, deputy state AG Saferi Al, State counsels Nur Azhar Bujang and Voon Yan Sin.

Petronas was represented by senior lawyer Malik Imtiaz Ahmed Ghulam Sarwar and Alvin Chong.

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