Kuala Lumpur High Court judicial commissioner Mohamad Ariff Md Yusof today decided to recuse himself from hearing the case of who is the rightful Perak menteri besar.


Mohamad Ariff, a former senior partner of law firm Cheang and Ariff and a former PAS member, decided to disqualify himself from hearing the case following an objection from the Attorney-General’s Chambers.

Perak Legal Advisor Ahmad Kamal Mohd Shahid, who has said he is representing respondent Zambry Abdul Kadir - the menteri besar designated by Barisan Nasional (BN) - had also voiced his client's objection. M Reza Hassan held a watching brief for BN.

In his nine-page ruling this morning, Ariff stressed that the case filed by ousted Pakatan Rakyat menteri besar Mohd Nizar Jamaluddin (photo, wearing striped tie) had been assigned to him not by choice or upon his request.

"It is a normal incidence of case assignment in the Appellate and Special Powers division of the High Court," he explained.

Ariff, a former PAS member, had held posts at branch and division levels and had contested on a party ticket in the 2004 general election for the Kota Damansara state seat.

Maintaining that he had given up all political posts when he took the oath of office as judicial commissioner on Sept 15 last year, he said that - in the interests of transparency and justice - he had declared his interests on Feb 18 when the case was fixed for mention.

Ariff also repeated three times the foundation principle of justice when reading out his decision. This, he said, was the single underlying factor resulting in his decision to recuse himself from hearing this case.

"Justice must not only be done but must manifestly be seen to be done. That was why I decided at the outset, when I informed the parties I was considering recusing myself from hearing the case by reason of my previous involvement as counsel for PAS and PKR on a number of matters.

"For completeness, I also informed the parties that I had previously acted as well for a Barisan Nasional candidate in an election petition case in Sarawak."

Ariff said Kamaludin had advised him on Monday that there is currently public debate on whether he (Ariff) can be impartial when hearing the case, and maintain the standard of public confidence in the judiciary.

"Counsel (Kamaluddin) was careful to explain that the objections were taken not because I would in fact be biased but rather to avoid an appearance of bias in the public interest. Kamaluddin advised that the test to be applied is the real danger of bias," said Ariff.

Test of objectivity

Ariff also referred to objections raised by senior counsel Sulaiman Abdullah, who is leading a team of eight lawyers in representing Nizar.

Ariff said Sulaiman (right) had taken a diametrically opposed position but relying on the same principle of public interest and applying the same standard of "real danger of bias".

He said his position could be summarised in seven points.

The real danger of bias test is not satisfied.
I can sit and must sit, as a matter of constitutional duty.
There is an imperative requirement that I preside and hear this case.
The presumption is that a judge will be fair and impartial.
Recusal will invite unwarranted comments regarding the judiciary.
Recusal will send a wrong message that I cannot decide objectively on a matter of controversy.
I can hear this case because my nexus is merely tangential, not personal or pecuniary.
Saying both sides had presented convincing arguments, Ariff said the question remains as to how a judge in his position is to decide objectively that there is a real danger or possibility of bias if he proceeds to hear the case.

"Learned SFC (senior federal counsel) for the AG's Chambers advised an approach of ‘if in doubt recuse’. That seems as an argument based on expediency, which should figure last in any order of assessment.

"I am of the view, that any decision to recuse in the present circumstances is best rooted in first principles of justice. I had highlighted this point on the first mention date on Feb 18.

“The primary concern must be that justice must manifestly be seen to be done. Not just be done but I stress, manifestly so. The objective fact is my sitting has courted controversy, whether rightly or wrongly.”

The judicial commissioner pointed out that a comment in an authority cited by Kamaluddin becomes highly relevant, citing a passage from the book ‘Judges on Trial’ by Shimon Shetreet:

‘However, where the interest is more than minimal or when his association with a party, witness or counsel might give rise to the appearance of impropriety, of unfairness or bias, he will disqualify himself and not leave the matter dependent upon whether or not the parties will raise objection.’

He then announced that he is recusing himself from hearing the case, saying there are other judges in the Appellate and Special Powers division who are equally qualified to preside “if my earlier suggestion [...] that this case be referred directly to the Federal Court under Section 84 of the Courts of Judicature Act and Article 63 of the Perak constitution is agreed".

In an immediate reaction, Nizar said he respects the judge's decision and that he is not disappointed.

"The legal battle will go on and this is just the beginning of an interesting case. We are confident and optimistic of winning," he said.

"And respecting the judge's decision to recuse himself shows we're law-abiding citizens of a civil society."

Court's interpretation sought

Nizar filed the suit on Feb 13 against Zambry to determine the rightful candidate for the post, following the collapse of the Perak government earlier this month.

The suit seeks an interpretation of Article 16(6) of the Perak constitution on whether the menteri besar’s post can be vacated when:

- The menteri besar had advised the ruler on a dissolution of the state legislative assembly;

- There was no dissolution of the assembly;

- There was no motion of confidence against the menteri besar in the state legislative assembly; and

- The menteri besar did not resign.

In his application, Nizar said Zambry should cite the authority that allows him to legitimately become the menteri besar.

Nizar is also seeking a declaration that Zambry (left) has no right to be menteri besar at any material time plus an injunction to prevent him or his agents from continuing his task and role as the menteri besar.

There is also a claim for punitive, aggravated and exemplary damages together with costs.

The application for recusal will also hear the leave application; whether the Perak legal adviser can represent Zambry; and whether Nizar wants to take the matter up directly with the Federal Court as it involves an interpretation of the constitution.