Unfair Game

Yesterday, a three man bench Court of Appeal overturned the High Court decision of a suit against TV3 by DAP-puppet MB of Perak (2008-9) Mohamed Nizar Jamaluddin for slandering HRH Sultan of Johor in the tendering episode of ‘WWW 1″ almost two years ago.

Published: Tuesday February 25, 2014 MYT 5:33:00 PM
Updated: Tuesday February 25, 2014 MYT 5:34:55 PM

Court of Appeal finds TV3 guilty of defaming Nizar

PUTRAJAYA: The Court of Appeal here on Tuesday ruled that TV3 was liable for defaming former Perak Mentri Besar Datuk Seri Mohammad Nizar Jamaluddin over his tweets on the WWW1 vehicle registration number which was successfully bid for by the Sultan of Johor.

A three-member panel chaired by Justice Datuk Mohamad Ariff Md Yusof unanimously allowed Mohammad Nizar’s appeal to set aside the decision of the High Court, which had dismissed his RM50mil defamation suit against TV3.

Justice Ariff subsequently remitted the case back to the High Court for assessment of damages.

In his ruling, Justice Ariff said TV3 had failed to establish the defence of justification.

He said there was malice in the report by the TV station, adding that TV3 also failed to prove that its report was true or partially true.

“The Court is of the view that the High Court’s decision cannot be sustained and is hereby set aside,” said Justice Ariff, who presided on the panel with Justices Datuk David Wong Dak Wah and Datuk Abang Iskandar Abang Hashim.

He also ordered TV3 to pay RM30,000 in legal costs to Mohammad Nizar for the court proceedings in the Court of Appeal.

Mohammad Nizar was appealing against the April 12, 2013 decision of the Kuala Lumpur High Court in dismissing a defamation suit brought by him against TV3 and the producer of Buletin Utama, Rohani Ngah, over his comments on the vehicle registration number, which was bid successfully for by the Sultan of Johor in May 2012 for RM520,000.

In his statement of claim, Mohammad Nizar stated that he had issued a statement through his Twitter account on May 28, 2012, concerning the vehicle number plate.

He claimed that on May 30 2012, TV3 carried news on his Twitter statement over its 8pm Bulletin Utama news slot.

Lawyer Liew Teck Huat representing TV3, when met by lawyers, said he would study the grounds of judgment before deciding on whether to bring the matter up to the Federal Court.

Mohammad Nizar was represented by lawyer Mohd Fitri Asmuni. – Bernama

*******************

There arise serious doubts of the impartiality of Justice Datuk Mohamad Ariff Md Yusof who presided the three-man-bench.

This is because Justice Ariff is a PAS man and believed still to be a staunch supporter of the political party. In 11GE, he stood as the PAS candidate for Kota Damansara but lost to UMNO man Dato’ Mokhtar Dhahlan.

Ariff was also the Legal Cousel for PAS in an election petition in Perlis.

If Ariff still had the strong inclination towards PAS especially Nizar, then he should have recused himself from hearing the appeal case. When Nizar wsa dismissed as MB Perak and HRH Paduka Seri Sultan Perak appointed Dr Zambry Abdul Kadir as the 10th Menteri Besar, Nizar took Dr Zambry to court.

On 25 February 2009, then Judicial Commissioner Ariff recused himself from hearing the suit.

The Star report:

                 Published: Wednesday February 18, 2009 MYT 1:10:00 PM
Updated: Wednesday February 18, 2009 MYT 7:58:52 PM

Nizar vs Zambry: Judge offers to recuse himself (Updated)

KUALA LUMPUR: In an unexpected twist High Court Judicial Commissioner Mohamad Arif Md Yusof offered to recuse himself from hearing the lawsuit filed by former Perak mentri besar Datuk Seri Mohd Nizar Jamaluddin against his successor Datuk Dr Zambry Abdul Kadir.

The suit was filed after the Pakatan Rakyat government lost the state to Barisan Nasional with the resignation of three assemblymen from their parties, and the defection of a fourth.

Nizar wants the court, by way of judicial review, to declare him the legitimate mentri besar and for an injunction to stop Dr Zambry or his agents from carrying out the duties and functions of the mentri besar.

At the onset of the proceedings Wednesday, Mohamad Arif said he has been a legal advisor and counsel for PAS on a number of election petition cases. Nizar is a member of PAS, which together with PKR and DAP, makes up the Pakatan alliance.

“I have also been involved in PAS legal matters from time to time, and have advised PKR on legal issues,” Mohamad Arif said.

“I have also acted for Barisan in an election petition in Sarawak,” he added.

“I tend to think that to preserve justice and the integrity of the institution, perhaps I should recuse myself from hearing this matter,” he said.

He set Feb 23 for counsel from both sides to brief him on whether they had any objection to him hearing the matter, as well as on two other issues:

First, whether the matter should be referred to the Federal Court over the question of law for determination and finality, over intepretation of Article 16(6) of the Perak Constitution.

Second, on the standing of Perak’s state legal advisor Datuk Ahmad Kamal Md Shahid acting as counsel for the respondent since Dr Zambry is being sued in his personal capacity.

The five-page suit, filed last Friday, also asks for “punitive, aggravated and exemplary” damages to be awarded to Nizar.

Earlier, Mohamad Arif said that he allowed for the matter to be called in the open court because 14 lawyers turned up for the case and that he wanted all to know his position.

Besides, he said, the parties may want to refer the matter to the Federal Court over question of law on the interpretation of Article 16(6) of the Perak Constitution for finality.

(Article 16 (6) states that if the Mentri Besar ceases to command the confidence of the majority of the members of the Legislative Assembly, then unless at his request His Royal Highness dissolve the legislative assembly he shall tender the resignation of executive council).

On hearing this, Perak Legal Advisor Datuk Ahmad Kamal Md Shahid, who appeared for Zambry, said he had received instructions to apply for his recusal from hearing the case.

However, lead counsel Sulaiman Abdullah, who represented Nizar with seven lawyers, argued that the JC was capable of hearing the case without any danger of bias.

Among others, he said, the JC could recuse himself if he had a personal relationship with any of the parties, or applied for land in Perak through them and had briefed the two on the legal steps before they held Mentri Besar post.

“You have appeared for PKR, PAS for the election petition and for Barisan in Sarawak, it is in your capacity as an advocate and soliticor. That is your area of practice and you have no choice not to accept it,” he said.

The JC then said that he was no longer involved in any political party and that he was more concerned about the public perception.

Sulaiman then argued that it was the judge’s inherent function to educate and inform on the law and public issues.

In submitting his points further, Sulaiman said the judge would be failing in carrying out his judicial duty and interest of justice if he was considering the “wrong perception of public”.

At the outset, Sulaiman objected to Ahmad Kamal representing the respondent saying that it was a conflict of interest.

Ahmad Kamal said he had a right to represent the respondent and that the application by the counsel was premature. He said he had yet to receive an affidavit to support of the application.

He also applied to the JC to transfer the case back to Ipoh High Court.

“It is because both parties are staying in Ipoh and involved in the state government of Perak and the people of Perak. Therefore, the proper forum is to be tried at Ipoh High Court,” he said.

Sulaiman argued that Ahmad Kamal should also be disqualified from appearing for Zambry because of “all party sentiments”.

“It should be (tried) in neutral territory and in specialised court,” he said. The case is filed at High Court (Appellate and Special Powers division).

Sulaiman said there was no question of witnesses involved in the case and that all would be in the form of affidavits as it was a pure question of law to be decided.

SFC See Mee Chun, who appeared for Attorney-General Chambers, said she had to seek instructions over the matter.

Justice Mohamad Ariff asked the parties to file proper applications and set Monday for mention over the issues of the recusal, referring the matter to apex court and the acting of the Perak Legal Advisor as counsel for the respondent since Zambry was being sued in his personal capacity

******************

This is very serious since Justice Ariff is believed to have political inclination. That would probably means that he is biased in the case and as he presided the three-man-bench, he would probably be influencing the other judges too.

TV3 should act on this.

Published in: on February 26, 2014 at 13:30  Comments (8)  

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8 CommentsLeave a comment

  1. […] The “thirteen million plus Ringgit” guy rambles…. […]

  2. The decision by court of appeal is unanimously.
    The other two judges,Dato Wong and Abang Iskandar could opposed Ariff yusof if they disagree.this is the problem with our judges.

    I agree with you that judge should rescue himself in this case .my other question is why the TV3 lawyers didnot ask judge Arief to rescue himself if they knew his backround.
    Maybe they didnt do their homework.

    • The onus is on the judge to declare that he was formerly a PAS candidate in the election, the legal advisor of the party and is/was a member. That is the norm in the Malaysian legal system. Only then can the lawyers object to him being on the bench. In this case Justice Ariff did not do so. Lawyers are not privy to all information. And one cannot expect the lawyers to check the backgrounds of all judges, especially in the Appellate Court when there is a minimum of three judges on the bench.
      On your other point, that there were two other judges who could make a balanced judgment is not valid in court. Please read the decision of the House of Lords on the Pinochet extradition case. One of the five members of the bench had an indirect interest (i.e. his wife was involved directly with Amnesty International). The decision of the entire bench of five members was reversed because it was held that one member was “tainted”. In the case of TV3, justice Ariff was the leader of the three-member Bench and therefore had influence over the other two.

  3. How come an active politician still become a judge?

  4. JUDGES’ CODE OF ETHICS 1994

    “……Impartiality is essential to the proper discharge of the judicial office. It applies not only to the decision itself but also to the process by which the decision is made….”

    1. This code of ethics may be cited as the Judges’ Code of Ethics 1994.

    2. (1) This code of Ethics shall apply to a judge throughout the period of his service.

    (2) The breach of any provision of this Code of Ethics may constitute a ground for the removal of a judge from office.

    3. (1) A judge shall not –

    (a) subordinate his judicial duties to his private interests;
    (b) conduct himself in such manner as is likely to bring his private
    Interests into conflict with his judicial duties;
    (c) conduct himself in any manner likely to cause a reasonable suspicion that –
    (i) he has allowed his private interests to come into conflict with his judicial duties so as to impair his usefulness as a judge; or
    (ii) he has used his judicial position for his personal advantage;
    (d) conduct himself dishonestly or in such manner as to bring the Judiciary into disrepute or to bring discredit thereto;
    (e) lack efficiency or industry;
    (f) inordinately and without reasonable explanation delay in the disposal of cases, the delivery of decisions and the writing of grounds of
    judgment;
    (g) refuse to obey a proper administrative order or refuse to comply with any statutory direction;
    (h) absent himself from his court during office hours without reasonable excuse or without prior permission of the Chief Justice, the President of the Court of Appeal or the Chief Judge, as the case may be; and
    (i) be a member of any political party or participate in any political activity.

    source: http://www.kehakiman.gov.my/sites/default/files/document3/POJ-LAPORAN%20TAHUNAN/ENGLISH/IA-PT2.pdf

    – OK, I am no lawyer, but this whole affair as reported at the very least raised question as to whether or not there is a breach of paragraph 3 (1) (c) (i) and 3 (i) which in turn provide ground for paragraph 2. (2).

    • Well said Varuna. TV3 should file an application to impugn the judgment and seek a new corum to hear the appeal.

      I am quite sure TV3 will do so…

  5. WTF’s wrong with this judge? He should have dischargd himself. He stood in the same election with Nizar! Is he now trying to pretend that he does not know Nizar? And that he has no affection for PAS. How can a judge like this be appointed to the bench? Raises many questions about our entire judiciary!

  6. […] motion was filed to impugn the Court of Appeal decision on 25 Feb 2014 where Justice Ariff presided a three man bench to overturn the dismissal of Ir Nizar’s RM50 million suit against TV3 for defaming him in […]


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