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Wed decision on judge’s recusal in Nizar case

KUALA LUMPUR, 23 Feb 2009: High Court Judicial Commissioner Mohamad Ariff Md Yusof will decide on Wednesday whether he should recuse himself from hearing the lawsuit filed by embattled Perak Menteri Besar Datuk Seri Mohammad Nizar Jamaluddin.

Nizar, from PAS, filed the lawsuit against recently-appointed Menteri Besar Datuk Dr Zambry Abdul Kadir from the Barisan Nasional. 

Mohamad Ariff said he would give serious thought on the issue and study the one-hour submissions by counsel Sulaiman Abdullah, for Nizar, and senior federal counsel Datuk Kamaluddin Md Said, for the Attorney-General’s Chambers. 

Last Wednesday, Mohamad Ariff expressed concern about whether or not he should sit in on the proceedings due to his prior involvement in PAS before he was elected judicial commissioner last September.

Mohamad Ariff was to decide on the judicial review sought by Nizar to declare himself the legitimate Perak Menteri Besar and for an injunction to stop Zambry from carrying out the duties and functions of Perak Menteri Besar.

Today, Kamaluddin said Mohamad Ariff should recuse himself from hearing the case to avoid negative perception of his partiality.

“It is the AG’s Chambers’ view that to maintain public confidence in the judiciary, and in the interest of justice, it is appropriate that your Lordship recuse yourself,” he submitted.

Kamaluddin said there was a real danger of bias on the part of the judge by reason that Mohamad Ariff was a former PAS member and legal advisor for PAS in several election petitions.

This contention was objected to by Sulaiman who submitted that under the Judges’ Code of Ethics, a judge was not barred from hearing a case of a political party as long as he is not currently a member of any political party.

He also said that there was no basis for Mohamad Ariff to recuse himself from hearing the matter as what was more important was the integrity and honesty of the judge himself.

“If you decide to recuse, you will give the message that you cannot decide objectively on a matter of controversy. This is not the message that you want to send out,” he said.

“Your Lordship’s recusal may invite unwarranted comments regarding our judiciary,” Sulaiman said, adding that the test of the real danger of bias was not satisfied in the circumstances of this case.

Counsel Nga Hock Cheh, also for Nizar, suddenly changed the topic when he read out a four-line poem in the court.

“Harapkan pagar, pagar makan padi, harapkan Adun, ada Adun lompat parti, memang tidak berprinsip dan berintegriti, cara BN rampas kuasa cabul demokrasi,” Nga recited.

To this, Datuk Mohd Hafarizam Harun, who holds a watching brief for Umno, objected saying that the proceedings should be confined to issues of law and not for any political agenda.

Nizar was represented by eight lawyers while Perak legal advisor Datuk Ahmad Kamal Md Shahid acted for Zambry. — Bernama


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