Updates on JC

Updates:- Judicial Commissioner Justice 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 would court 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.

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 are be equally qualified to hear this case.”

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.”

The judicial commissioner had expressed his views to the parties last week that he was considering recusing himself from hearing the judicial review due to his previous active involvement as an adviser and counsel for PAS and PKR in number of matters.

The judge had also been a member of PAS with party positions at branch, division and state levels and had contested in the 2004 general elections for a state constituency as a PAS candidate.

He also informed the parties that he had acted for a Barisan Nasional candidate in an election petition in Sarawak and asked their opinion over the matter.

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

On his previous involvement in the political process, Justice Mohamad Ariff said this:

“It was an exercise of a legitimate political choice as a citizen, which properly speaking should not have an immediate bearing on my impartiality as a judicial commissioner to hear this case, since all judges and judicial commissioners are duty bound to discharge their function justly and impartially, and to uphold the constitution,” he said.

Later, Nizar, who was represented by lead counsel Sulaiman Abdullah, said he would abide by the decision and have confidence that the application would be heard by another judge in a fair manner.