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Judge recuses self from Nizar case (Updated 4.55pm)

KUALA LUMPUR, 25 Feb 2009: Judicial Commissioner Mohamad Ariff Md Yusof today recused himself from hearing Datuk Seri Mohammad Nizar Jamaluddin’s suit against Datuk Dr Zambry Abdul Kadir over the post of Perak Menteri Besar.

Mohamad Ariff said that in the interest of justice, it was better for him to recuse himself.

There were also other judges qualified to hear the case, he said, advising both parties to refer the case to the Federal Court.

He said this when deciding on whether or not he should hear Mohammad Nizar’s application for a judicial review.

The judicial review was to declare Mohammad Nizar as the legal mentri besar of Perak and to issue an injunction to stop Zambry from carrying out the duties and functions of menteri besar.

On the first day of the hearing on 18 Feb, Mohamad Ariff offered to recuse himself on the grounds that prior to his appointment as a judicial commissioner, he had served as defence counsel and legal advisor to PAS in several election petitions.

He had also served as counsel for Parti Keadilan Rakyat in several matters besides representing the Barisan Nasional election petitions in Sarawak. 

In his eight-page decision, Mohamad Ariff said it would be in the interest of transparency and justice for him to declare his interest to the parties in the suit to avoid any appearance of bias on his part.

“For clarity, avoidance of doubt and unnecessary speculation, I wish to state that I am no longer a party member of any political party, having tendered my resignation from PAS before accepting the position of judicial commissioner.

“The objective fact is my sitting has courted controversy, whether rightly or wrongly,” he said.

He added that the case was assigned to him, not by his choice or upon his request, but as a normal incidence of case assignment in the Appellate and Special Powers Division of the High Court at Kuala Lumpur.

Last Monday, senior federal counsel Datuk Kamaluddin Md Said, for the Attorney General’s Chambers, submitted that there was a real danger of bias on the judge’s part, and therefore Mohamad Ariff should recuse himself from hearing the case to maintain public confidence in the judiciary.

Mohammad Nizar’s counsel Sulaiman Abdullah had objected, saying that there was no basis for Mohamad Ariff to recuse himself from hearing the matter as what was more important was the judge’s integrity and honesty.

“The problem is this: how is a judge in my position to decide objectively that there is a real danger of bias 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 require me to discharge my functions impartially,” said Mohamad Ariff.

He further said that any decision to recuse in the present circumstances was best rooted in the principle of justice.

“The primary concern must be that justice must be manifestly seen to be done, not just be done,” stressed Mohamad Ariff.

Nizar, when met by reporters outside the courtroom, said: “I respect and will abide by the decision today. We have confidence if the application is heard before another judge. The legal battle has begun and we are confident of winning.”

Zambry was represented by Perak legal advisor Datuk Kamal Md Shahid while counsel M Reza Hassan held a watching brief for Umno.  — Bernama

See also:
Wed decision on judge’s recusal in Nizar case

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