KUALA LUMPUR: In an unexpected twist High Court Judicial Commissioner Mohamad Arif Md Yusof offered to recuse himself from hearing the lawsuit filed by former Perak mentri besar Datuk Seri Mohd Nizar Jamaluddin against his successor Datuk Dr Zambry Abdul Kadir.
The suit was filed after the Pakatan Rakyat government lost the state to Barisan Nasional with the resignation of three assemblymen from their parties, and the defection of a fourth.
Nizar wants the court, by way of judicial review, to declare him the legitimate mentri besar and for an injunction to stop Dr Zambry or his agents from carrying out the duties and functions of the mentri besar.
At the onset of the proceedings Wednesday, Mohamad Arif said he has been a legal advisor and counsel for PAS on a number of election petition cases. Nizar is a member of PAS, which together with PKR and DAP, makes up the Pakatan alliance.
“I have also been involved in PAS legal matters from time to time, and have advised PKR on legal issues,” Mohamad Arif said.
“I have also acted for Barisan in an election petition in Sarawak,” he added.
“I tend to think that to preserve justice and the integrity of the institution, perhaps I should recuse myself from hearing this matter,” he said.
He set Feb 23 for counsel from both sides to brief him on whether they had any objection to him hearing the matter, as well as on two other issues:
First, whether the matter should be referred to the Federal Court over the question of law for determination and finality, over intepretation of Article 16(6) of the Perak Constitution.
Second, on the standing of Perak’s state legal advisor Datuk Ahmad Kamal Md Shahid acting as counsel for the respondent since Dr Zambry is being sued in his personal capacity.
The five-page suit, filed last Friday, also asks for “punitive, aggravated and exemplary” damages to be awarded to Nizar.
Earlier, Mohamad Arif said that he allowed for the matter to be called in the open court because 14 lawyers turned up for the case and that he wanted all to know his position.
Besides, he said, the parties may want to refer the matter to the Federal Court over question of law on the interpretation of Article 16(6) of the Perak Constitution for finality.
(Article 16 (6) states that if the Mentri Besar ceases to command the confidence of the majority of the members of the Legislative Assembly, then unless at his request His Royal Highness dissolve the legislative assembly he shall tender the resignation of executive council).
On hearing this, Perak Legal Advisor Datuk Ahmad Kamal Md Shahid, who appeared for Zambry, said he had received instructions to apply for his recusal from hearing the case.
However, lead counsel Sulaiman Abdullah, who represented Nizar with seven lawyers, argued that the JC was capable of hearing the case without any danger of bias.
Among others, he said, the JC could recuse himself if he had a personal relationship with any of the parties, or applied for land in Perak through them and had briefed the two on the legal steps before they held Mentri Besar post.
“You have appeared for PKR, PAS for the election petition and for Barisan in Sarawak, it is in your capacity as an advocate and soliticor. That is your area of practice and you have no choice not to accept it,” he said.
The JC then said that he was no longer involved in any political party and that he was more concerned about the public perception.
Sulaiman then argued that it was the judge’s inherent function to educate and inform on the law and public issues.
In submitting his points further, Sulaiman said the judge would be failing in carrying out his judicial duty and interest of justice if he was considering the “wrong perception of public”.
At the outset, Sulaiman objected to Ahmad Kamal representing the respondent saying that it was a conflict of interest.
Ahmad Kamal said he had a right to represent the respondent and that the application by the counsel was premature. He said he had yet to receive an affidavit to support of the application.
He also applied to the JC to transfer the case back to Ipoh High Court.
“It is because both parties are staying in Ipoh and involved in the state government of Perak and the people of Perak. Therefore, the proper forum is to be tried at Ipoh High Court,” he said.
Sulaiman argued that Ahmad Kamal should also be disqualified from appearing for Zambry because of “all party sentiments”.
“It should be (tried) in neutral territory and in specialised court,” he said. The case is filed at High Court (Appellate and Special Powers division).
Sulaiman said there was no question of witnesses involved in the case and that all would be in the form of affidavits as it was a pure question of law to be decided.
SFC See Mee Chun, who appeared for Attorney-General Chambers, said she had to seek instructions over the matter.
Justice Mohamad Ariff asked the parties to file proper applications and set Monday for mention over the issues of the recusal, referring the matter to apex court and the acting of the Perak Legal Advisor as counsel for the respondent since Zambry was being sued in his personal capacity