The Federal Court was today urged to throw out the allegation of judicial bias made against the Court of Appeal to protect the dignity and integrity of the court, its judges and the administration of justice.

Counsel Cyrus Das, representing Fawziah Holdings in defending a RM65 million award granted to it by the Court of Appeal, said the allegation of judicial bias would cast a stain on the careers of the judges who gave or concurred with the judgement.

"The entire case of bias based on a written submission does not constitute judicial bias. It is established law that no outsider should interfere in the way a judge conducts his or her case.

"The question then arises, who is to protect these judges in these circumstances where the presumption at appellate level is that judgments of the courts below may be subjected to criticism?"

Das further argued that toll concessionaire Metramac Corporation Sdn Bhd's action to have the entire Court of Appeal judgment struck out was flawed. Metramac - the concessionaire of the East-West Link Expressway and the Sungai Besi Expressway - is appealing against the court of appeal's ruling to pay Fawziah Holdings the RM65 million for the breach of contract on advertising rights.

"The determination of the legal issues by the Court of Appeal are not affected by the adverse remarks about third parties," said Das referring to appellate judge Gopal Sri Ram's remarks on the involvement of high profile figures like former finance minister Daim Zainuddin and business tycoon Halim Saad in Metramac.

In ordering the award to Fawziah Holdings, Gopal had said Halim and his former business partner Anuar Othman had siphoned RM32.5 million under the alleged patronage of Daim. Fellow judges Hashim Yusoff and Zulkefli Makinudin concurred with his judgment.

Mutual termination

On Tuesday, Metramac's lawyer Muhammad Shafee Abdullah said the 'adverse statements' by Gopal Sri Ram had tarnished the integrity of the entire judicial system.

Shafee argued that the apex court should not disregard the seriousness of such a 'bias statement'.

"There is indeed a real danger that the Court of Appeal had, or might have, allowed itself to be influenced against (Metramac)," he said.

Submitting on the second issue regarding the agreed terms in the contract between Fawziah Holdings and Metramac, Das said the RM65 million was payable to Fawziah Holdings because it was a mutual termination between the parties and a stipulated sum was payable upon such an event.

"The clause (in the contract) stated that a sum was payable and that equates to a form of debt. It cannot be damages because that only arises out of compensation should a breach of contract occur," Das ( pix ) said.

"Here the event that happened is the mutual termination and a mutual termination of a contract is not a breach (of contract). "

Yesterday, Shafee had submitted that the Court of Appeal had departed from the findings of the High Court and had applied contractual damages incorrectly.

"It is an established principle of law that damages are compensatory in nature.

"The judgment of the Court of Appeal which departed from the judgment of the High Court granted Fawziah Holdings a larger sum than had the contract been performed," he argued.

Expunge request

Judicial bias is one of the three issues in this case which is considered by the Federal Court. The country's highest court is to decide on the following in hearing the appeal:

  • Whether the creation of trust under the sale agreement amounts to an illegal reduction of capital;

  • Whether the test adopted by the Court of Appeal was correct in its determination that clause 8 of the Signage Agreements is a stipulation by way of penalty named in contract for purposes of Section 75 of the Contract Acts 1950; and

  • Whether the Court of Appeal's adverse remarks or findings show a real danger of bias in the judgment arrived at against Metramac.

    • Daim and Halim are also appealing for Gopal's specific remarks against them to be expunged from the Court of Appeal decision.

    The hearing, before a five-member panel of judges led by chief justice Ahmad Fairuz Sheikh Abdul Halim, continues tomorrow.

    Metramac scandal background