The Court of Appeal has dismissed Malaysiakini’s appeal to recuse judge Kamaludin Md Said from hearing the lawsuit brought by Prime Minister Najib Abdul Razak against the news portal.

“The factual circumstances before us do not reach the threshold of real danger of bias, therefore we are dismissing the appeal with costs,” said Justice David Wong in his oral judgment today.

The other members of the panel are Justice Mary Lim and Justice Umi Kalthum Abdul Majid.

The court ordered Malaysiakini to pay the respondents RM5,000 in costs.

The news portal was appealing against Kamaludin’s decision in January last year not to recuse himself from the hearing, despite his transfer from the Kuala Lumpur High Court to the Seremban High Court.

The case was in respect of a defamation suit brought by Najib against Malaysiakini’s publisher Mkini Dotcom Sdn Bhd, editor-in-chief Steven Gan, and then chief editor Fathi Aris Omar on Jun 4, 2014, over readers’ comments published on the news portal on May 14 that year.

Umno executive secretary Abdul Rauf Yusoh was a co-claimant to the suit.

At the Court of Appeal today, Malaysiakini’s counsel Malik Imtiaz Sarwar argued that since Kamaludin had mediated the dispute between the news portal and Najib, he was privy to the news portal’s position.

That could unconsciously prejudice the judge’s decision, if the judge also presided over the hearing after the mediation had failed, he said.

Even if the judge could adjudicate the case fairly, he said an objective bystander might believe otherwise.

In addition, he said it was “out of step” from the common practice for a judge in Seremban to preside over a case in Kuala Lumpur, after being transferred before the case can properly begin.

This, he said, may raise questions in the minds of an objective bystander.

Meanwhile, Najib’s counsel Mohd Hafarizam Harun countered that there was no mediation.

“It was merely an attempt to reach a settlement out-of-court, but duly informing the judge,” he said.

He added that Kamaludin’s transfer to the Seremban High Court was merely an administrative action, since there was only the High Court of Malaya, and High Court of Sabah and Sarawak in Malaysia’s judiciary.

In other words, there was no change to Kamaludin’s jurisdiction despite being transferred to a new location.

Previously, Malaysiakini had also challenged the Chief Justice of Malaya’s directive for Kamaludin to hear the case, but the Federal Court had dismissed the application in September last year.