Pesuruhjaya Kehakiman tentukan Rabu ini sama ada dengar permohonan Nizar
Pesuruhjaya Kehakiman Mohamad Ariff Md Yusof menetapkan Rabu ini untuk memutuskan sama ada perlu menarik diri daripada mendengar perbicaraan kes permohonan Datuk Seri Mohammad Nizar Jamaluddin untuk mendapatkan pengisytiharan mahkamah bahawa beliau masih Menteri Besar Perak yang sah.
Mohamad Ariff menetapkan tarikh itu di Mahkamah Tinggi Bahagian Rayuan dan Kuasa-Kuasa Khas di sini hari ini, selepas selesai mendengar hujahan peguam Sulaiman Abdullah yang mewakili Mohammad Nizar dan Peguam Kanan Persekutuan, Datuk Kamaludin Md Said, yang mewakili Pejabat Peguam Negara berhubung isu itu.
Pada 18 Februari lalu, Mohamad Ariff menyatakan keinginannya menarik diri daripada mendengar perbicaraan kes itu kerana beliau pernah menjadi penasihat undang-undang untuk parti Pas, Parti Keadilan Rakyat (PKR) dan Barisan Nasional (BN) dalam beberapa kes termasuk petisyen pilihan raya.
Dua isu lain iaitu sama ada kes itu perlu dirujuk ke Mahkamah Persekutuan bagi penentuan persoalan undang-undang dan sama ada Penasihat Undang-Undang Perak, Datuk Ahmad Kamal Md Shahid, boleh mewakili Zambry dalam kes itu, akan ditentukan selepas Mohamad Ariff mengumumkan keputusannya.-CinaIslam–
Nizar Case : JC decide on recusal this wed !
“I would need some time to study to the arguments submitted,” he said.
Proceedings began at 3.10pm before a packed court room which lasted until 4.30pm. There were portions of tense moments following a 10-minute blackout inside the court room and as power resumed the air-conditioner stopped functioning.
It was only after 40 minutes that the air-conditioning was restored at the RM86 million Jalan Duta court complex. Nizar who was wearing a yellow and black tie according to the state colours arrived at about 2.25pm with other Pakatan Rakyat exco members. Also present was Perak legal advisor, Ahmad Kamal Md Shahid, who was said to be representing Zambry.
The AG has an interests in this issue as it involves the interpretation of the Federal Constitution and the Perak Constitution. Kamaluddin in objecting to Ariff from hearing the case said his lordship was a former PAS member and had also advised the party and PKR on election petition cases.
However, Ariff interjected that in the last session he did state he represented BN in an election petition case in Sarawak. Kamaluddin then pointed out that Ariff was representing PAS candidate Hashim Jasin in the Sanglang election petition case in Perlis.
A real danger of bias?
“The view held by the AG’s chambers in view of the public debate and also in newspapers, is on whether your lordship could act partially when hearing this application. This is especially so as you had been on the opposition side,” he said.
Kamaluddin said he is voicing his objection that it would be appropriate for Ariff to recuse himself in the matter of public confidence in the judiciary.
“In the interest of the public confidence and interest, I think it would be appropriate for your lordship to recuse yourself,” he said.
Ariff then asked to submit whether there was a real danger of bias from him hearing the case and to this Kamaluddin replied there is real likable danger in the interest of justice.
“The main reason as I said is public perception on his impartiality as you were in the opposition camp,” he said. The matter came about as on Wednesday when the case was fixed for mention, Ariff disclose before an open court that he had represented PAS, PKR and also BN in election petition cases.
Ariff, who was a senior partner in Cheang and Ariff, was appointed as a JC on Sept 15 last year. It was reported in several newspapers (Utusan Malaysia) that Ariff had also contested under the PAS ticket for the Kota Damansara state seat in 2004.
Nizar’s lead counsel, Sulaiman submitted there was no real danger of Ariff being bias if he hears he case. Attacking Kamaluddin, Sulaiman said maybe in two months time he (Kamaluddin) would be elevated to become a JC but would that stop him from hearing habeas corpus cases.
Judges abide by a code
“I understand Kamaluddin was the Home Ministry’s legal adviser where he had advised ministers to provide detention without trial for Internal Security Act cases.
“If your lordship were to recuse yourself, then when Kamaluddin is appointed JC, he should then be barred from hearing habeas corpus cases,” he submitted.
Sulaiman said Ariff had made his stand known on Wednesday, but that does not mean that he (Ariff) could not act impartiality.
Using previous cases on the question of biasness such as Metramac, Ezam Md Noor and others, the senior counsel submitted that judges abide by the Judges Code of Ethics and they hold a high standard of impartiality and all parties should respect this.
“A judge is not barred from hearing cases of a political party, as long as he is not currently being a member of that political party. You took an oath of office under Article 122 of the Federal Constitution before the Yang di-Pertuan Agong to execute justice and the King has belief in your credibility and your impartiality.
“Hence, there should not be question of your lordship being impartial in handling this case as with other cases,” Sulaiman submitted.
He said that Ariff’s association with PAS was no reason for him to disqualify himself as he (Ariff) did not know Nizar and the ousted MB had not sought legal advice from him.
Sulaiman said as such there is no true evidence or danger of biasness as has been highlighted by the AG’s chambers.
“The AG must prove grounds to disqualify and the failure to meet the legal test meant that your lordship should remain on the bench,” the veteran lawyer submitted.
‘Ariff should stay on’
“I am telling your lordship that your disclosure on Wednesday meant that you not only can sit to hear the case but must sit to hear it. We all have confidence in your impartiality in deciding the matter. If you decide to recuse, it will only result in unwarranted comments regarding the judiciary,” he said.
Counsel Nga Hock Cheng, also for Nizar created an uproar when he delivered a Malay pantun on party hopping before driving home the point of the need for AG to provide possibility of biasness for it to ask for Ariff’s recusal. This led to BN’s counsel Mohd Hafarizam Hashim to object to the pantun.
Sulaiman then further submitted that he had the full confidence in Ariff to hear the case. Meanwhile, Nizar in commenting on today’s proceedings said he hoped Ariff would stay on as he had full confidence in the JC to hear the application.
“I have full confidence in him. Let’s wait till Wednesday for the decision.”
Asked whether he would appoint a Queen’s Counsel to help the legal team as with Umno and Zambry, Nizar replied he would not rely on external help.
“I have full confidence on the local lawyers that we have here to fight the case,” he said, adding he remained upbeat.
Meanwhile, Hafarizam representing BN said he do not know who is going to UK to seek help from a Queen’s Counsel. “That you have to ask Zambry. I do not know anything,” he said.
Nizar, in his application for judicial review, is seeking an interpretation of the Article 16 (6) of the Perak Constitution on whether the MB’s post can be vacated when:
(a) The menteri besar had advised the ruler on dissolution of the state legislative assembly;
(b) There was no dissolution of the assembly;
(c) There was no motion of confidence against the menteri besar in the state legislative assembly; and
(d) The menteri besar did not resign.
In his application, Nizar said Zambry should cite the authority that allows him to legitimately become the BN-designated menteri besar.
Nizar is also seeking:
(a) A declaration that Zambry has no right to be the menteri besar at any material time;
(b) An injunction to prevent Zambry or his agents from continuing his task and roles as the menteri besar; and
(c) Punitive, aggravated and exemplary damages, together with costs.
The application for recusal is being decided before the judge could hear the leave application, the issue on whether Ahmad Kamal, the Perak legal advisor, could represent Zambry and also whether Nizar wants to take the matter up directly to the Federal Court as it involves the interpretation of the Constitution.-ABO–