KUALA LUMPUR, Aug 8 — Tan Sri Muhammad Shafee Abdullah questioned today a decision to change the High Court judge presiding over Datuk Seri Najib Razak’s criminal cases over the misappropriation of RM42 million from a former unit of 1Malaysia Development Berhad (1MDB).

The prominent lawyer who is leading Najib’s defence team emphasised that he was not requesting the removal of Mohd Nazlan Mohd Ghazali as trial judge, but was only expressing his client’s "instruction”.

"This is instruction from my client, that this letter was not written with the view of recusing any judge. It is not written with the view of recusing your Lordship,” Shafee told Justice Nazlan during the hearing for Najib’s criminal breach of trust and power abuse cases this morning.

"This letter is written as an observation to the flaw in the administration of justice in this country in relation to this case,” Najib’s lead counsel added.

Shafee raised in court today a letter dated yesterday and addressed to the Chief Judge of Malaya Tan Sri Zaharah Ibrahim who oversees the management of the High Court here.

Shafee said he was not indicating that either current trial judge Mohd Nazlan or the previous trial judge Datuk Mohd Sofian Abd were "in anyway blameworthy”.

"In no way are we questioning the qualifications of either judge to hear the matter, including your Lordship,” he said.

Shafee noted that both the prosecution and defence had not asked for Sofian to be recused and for a new judge to replace him in hearing Najib’s criminal cases.

"We thought the right thing to do is for both parties to appear and ask Justice Sofian to recuse himself or if Justice Sofian himself feels uncomfortable, to notify both parties on whether he ought to recuse himself,” Shafee said.

Shafee said the defence team has no issue and are more than happy to have Mohd Nazlan preside over Najib’s case, noting: "We are more than aware of Yang Arif’s credentials.”

"My client’s complaint is failure of system in a case which is so highly publicised. I don’t think there’s a more highly publicised case.

"(This is) second to Datuk Seri Anwar Ibrahim. This is a former prime minister — first time — taken to court. I would have thought the administration of justice in Putrajaya would have been a lot more sensitive,” he said.

Disagreeing that Sofian had to recuse himself, Shafee also argued that the switch in trial judges for Najib’s case should have been done openly in court, instead of resulting from transfer of judges.

Among other things, Shafee also highlighted that the Bar Council had allegedly failed to comment on the manner in which the judges were changed in Najib’s trial.

Shafee said the Bar Council and the ex-civil servants group of G25 had however made comments asking for Sofian to be recused.

"I’m in no way and neither is my client hinting that the trial that would be conducted by Yang Arif would be unfair.

"We complain about the way of administration of justice from Putrajaya was conducted.

"It ought to be done in open court before Justice Sofian, who if he considered himself no longer fit to hear the case, recuse himself,” he told Mohd Nazlan.

However, deputy public prosecutor Manoj Kurup said there was nothing irregular about the change in judges, as there had been a transfer of judges prior to today’s proceedings.

"As far as we are concerned, what happened was an ordinary transfer of judges,” he told the High Court, adding that the Chief Judge of Malaya was exercising her powers under the law.

Manoj questioned the purpose of the letter when Shafee had said he has no concern with either High Court judges hearing the cases, further expressing doubt on whether the Chief Judge of Malaya had had the opportunity to respond to Shafee’s letter dated yesterday.

"Before she could respond, it was aired publicly here,” Manoj noted.

In response to Shafee’s remarks, Mohd Nazlan said: "I received your letter yesterday. I have read it but intend to say no more about it.”

Following the July 4 charging of Najib with criminal breach of trust and power abuse over RM42 million said to belong to SRC International Sdn Bhd, controversy had arose over Mohd Sofian after it was discovered that his brother is an Umno member and a Pahang state exco member.

Last week, reports emerge of Sofian being transferred from the criminal courts to the New Civil Court 10 effective Aug 1, and of Mohd Nazlan’s transfer from the commercial courts to the criminal courts.  

Mohd Nazlan today dealt with the two criminal cases against Najib, while another case involving new charges of money-laundering against the former Umno president over the same RM42 million was also mentioned in his courtroom.

The letter

In the nine-page letter to Zaharah that was also copied to Mohd Nazlan's and Mohd Sofian's secretaries, Shafee had disagreed with the allegations of Mohd Sofian's possible bias in view of the fact that the latter's elder brother's positions including as the chief of an Umno division in Pahang (Benta) and Najib's status as a former Umno president and Pekan Umno division chief.

Citing several past court rulings, Shafee argued that the allegations of bias against Mohd Sofian were unjustified and without legal basis.

"Justice Sofian has no reasons to recuse himself and therefore need not have to disclose his elder brother's position in Umno politics. In the circumstances, he has no such duty in law,” he had written.

Shafee said the "sudden transfer” of Mohd Sofian may cause the judge to have an adverse view of him, later also saying that it may be prejudicial to Najib's constitutional right to fair trial as the judge had already dealt with some preliminary matters in the cases.

Shafee further said the letter was just to put Najib's concern on record to avoid his client from being faulted in the future for not raising this issue earlier.