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Thursday February 26, 2009

JC opts out of Nizar suit

JC recuses himself from hearing case against Perak MB

KUALA LUMPUR: Judicial Com­missioner Mohamad Ariff Md Yusof has recused himself from hearing the judicial review filed by former Perak Mentri Besar Datuk Seri Mohammad Nizar Jamaluddin challenging the validity of his successor’s appointment, saying he made the decision based on the principles of justice.

“The primary concern must be that justice must manifestly be seen to be done,” he said.

Justice Mohamad Ariff noted that his involvement had already courted controversy “whether rightly or wrongly”.

He said his decision was not an outcome or a reaction against adverse comments on blogsites or certain sections of the mainstream media.

“It will be a sorry day for the judiciary if a judge’s conduct has to be conditioned by these extraneous factors, since they will fetter the independence of the judiciary unduly,” he said.

Last week, Justice Mohamad Ariff told the parties concerned that he was considering recusing himself from the case due to his previous active involvement as an adviser and counsel for PAS and PKR in a number of matters.

The judge revealed in court yesterday that he had been a member of PAS with party positions at branch, division and state levels and had also contested in the 2004 general election as a PAS candidate.

He said he had also acted for a Barisan Nasional candidate in an election petition in Sarawak.

Justice Mohamad Ariff noted that case laws did not point in a clear and consistent direction on the “real danger of bias” test.

“The pragmatic problem is this: how is a judge in my position to decide objectively that there is a real danger or possibility of bias if I am to proceed to hear the case?

“In a sense, being objective means I should opt in favour of the presumption of impartiality, and a conviction that my constitutional duty and oath requires me to discharge my functions impartially,” he said.

“In any event, there are other judges in the Appellate and Special Powers Division who will be equally qualified to hear this case,” he added.

He explained that the file was assigned to him not by choice or upon his request but as a normal incidence of case management in the division.

On his earlier suggestions to the parties to refer the case directly to the Federal Court under Section 84 of the Courts of Judicature Act and Article 63 of the Perak State Constitution, he said: “This case will have the immediate benefit of a plurality of judges at the highest level.”

In his suit filed on Feb 13, Nizar, who is a PAS member, challenged the legitimacy of his successor Datuk Dr Zambry Abd Kadir and the new state government.

During the mention of the case on Monday, Datuk Kamaluddin Md Said who appeared for the Attorney-General’s Chambers, advised the judge to recuse himself, saying that it would be appropriate to maintain the standard of public confidence in the judiciary.

Perak Legal Adviser Datuk Ahmad Kamal Md Shahid, who appeared for Dr Zambry, said he had received instructions to apply for Justice Mohamad Ariff’s recusal.

Nizar, who was represented by lead counsel Sulaiman Abdullah, told reporters that he would abide by the decision and had confidence for the application to be heard by another judge in a fair manner.

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