The Court of Appeal judge who made several remarks implicating a government minister and a business tycoon when handing down a RM65 million judgement behaved like a German Nazi, senior lawyer Muhammad Shafee Abdullah told the Federal Court today.

Submitting at the on-going Metramac Coporation vs Fawziah Holdings appeal, Shafee further said the judge's remarks had tarnished the integrity of the country's entire judicial system and the Court of Appeal judgment was probably 'the worst in the world'.

"The facts that were presented were the worst we had ever come across. It could even be the worst judgment in the world."

"If judges, in the course of submission, get into an altercation with the counsel, one can readily be forgiven. But there is a reservation of judgment when the judge is in the comfort of his own office with time to deliberate (to make such a judgment)."

"It's nothing to say that someone acted like a German Nazi because here you are convicting a senior minister in the government which is an offence of the worst kind."

Metramac - the concessionaire of the East-West Link Expressway and the Sungai Besi Expressway - is appealing against the ruling to pay Fawziah Holdings RM65 million for the breach of contract on advertising rights.

'Part of history'

In ordering the award to Fawziah Holdings, Court of Appeal judge Gopal Sri Ram had said tycoon Halim Saad and his former business partner Anuar Othman had siphoned RM32.5 million under the alleged patronage of Daim Zainuddin, the former finance minister.

Fellow judges Hashim Yusoff and Zulkefli Makinudin concurred with his judgment.

Shafee, representing Metramac, was arguing on one of the three pre-determined issues before the court - contract, trust and judicial bias.

Shafee was responding to Fawziah Holdings' counsel Cyrus Das' argument yesterday that 'the determination of the legal issues by the Court of Appeal are not affected by the adverse remarks about third parties'.

Das had urged the court 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.

Shafee, however, said there was a danger in letting the Court of Appeal judgment stand as it would become set law in the country.

"The Court of Appeal's written judgment is now part of Malaysian history. It is on record. It is made by a superior court in Malaysia. It will be used in the courts hierarchy. It would be a persuasive authority in the Commonwealth."

"That judgment is dangerous and this court must be serious in dealing with it. "

Specific remarks

Judicial bias is one of the three issues in this case which is being 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, was postponed to Aug 2.

    Metramac background