TV3 strikes back

DAP-Puppet-Menteri-Besar Ir Nizar Jamaluddin's notorious tweets

DAP-Puppet-Menteri-Besar Ir Nizar Jamaluddin’s notorious tweets upon the story about HRH Sultan Johor won the bid of the open tender for registration no. ‘WWW 1’ by JPJ, for RM520,000

The failure of Court of Appeal Judge Mohamad Ariff Mohd. Yusof to recuse himself from hearing appeal by DAP-Puppet-Menteri-Besar Ir Nizar Jamaluddin on the defamation suit against TV3 which had been decided for the latter by Kuala High Court, saw the most popular TV station striking back on the integrity of the judge.

A 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 reporting the former’s tweets on HRH Sultan Johor’s bid to acquire the registration no ‘WWW 1’.

The motion by TV3 lawyers:

IN THE COURT OF APPEAL MALAYSIA
(APPELLATE JURISDICTION)
CIVIL APPEAL NO: W-02(NCVC)(W)-1152-05/2013

BETWEEN

DATO’ SERI MOHAMMAD NIZAR BIN JAMALUDDIN​ … APPELLANT
AND

1. SISTEM TELEVISYEN MALAYSIA BERHAD
(Company No : 106645-T)

2. ROHANI NGAH
(Sued as the publisher of Buletin Utama (TV3)
of 30.5.12) ​ … RESPONDENTS

(In the Matter of the High Court Of Malaya At Kuala Lumpur
In the Federal Territory
(Civil Division)
Civil Suit No. 23NCVC-84-07/2012

Between

Dato’ Seri Mohammad Nizar Bin Jamaluddin​ … Plaintiff
And

1. Sistem Televisyen Malaysia Berhad
(Company No : 106645-T)

2. Rohani Ngah
(Sued As The Publisher Of Buletin Utama (Tv3)
Of 30.5.12) ​ … Defendants

decided by the Honourable Justice Datin Yeoh Wee Siam in the High Court of Malaya at Kuala Lumpur on 12th April 2013)

NOTICE OF MOTION

TAKE NOTICE that on the 6th day of March 2014 at 10 am, or as soon thereafter as he can be heard, Counsel for the abovenamed Respondents will move this Honourable Court pursuant to its inherent jurisdiction for the following Orders, namely that:

1. The Decision of the Court of Appeal given on 25.2.2014 allowing the Appellant’s appeal and setting aside the whole of the Decision of the Kuala Lumpur High Court dated 12.4.2013 and ordering that the action be remitted to the High Court for assessment of damages in favour of the Appellant, be set aside and/or discharged and/or reviewed.

2. The appeal herein be referred to a freshly constituted panel of this Honourable Court for a re-hearing and determination.

3. The costs of the application be provided for or be costs in the cause.

4. This Honourable Court makes such further or other Order or direction as it deems fit and/or necessary.

The grounds of this application are as follows:-

a. On 30.5.2012, the 1st Respondent aired over its Buletin Utama programme, a report concerning the tweet message sent by the Appellant containing his views on the bid made by the Sultan of Johor for the vehicle registration No. WWW 1.

b. The Appellant claimed that Buletin Utama report defamed him. He therefore instituted an action in libel against the Respondents by a Writ filed on 13.7.2012 in Kuala Lumpur High Court Civil Suit No. 23NCVC-84-07/2012 (the High Court Suit).

c. The High Court Suit came on for Trial before the Honourable Justice Datin Yeoh Wee Siam over two days in January 2013.

d. On 12.4.2013, Her Ladyship delivered her Decision dismissing the Appellant’s claim with no Order as to costs.

e. The Appellant, being dissatisfied with the High Court Decision, filed the present Appeal in Civil Appeal No. W-02(NCVC)(W)-1152-05/2013 in this Honourable Court on 9.5.2013.

f. The Appeal was heard on 28.10.2013 by a panel led by the Honourable Judge of Appeal, Justice Mohamad Ariff Bin Mohd Yusuf, and consisting of the Honourable Judges of Appeal, Justice Abang Iskandar bin Abang Hashim and Justice David Wong Dak Wah (the 1st Coram).

g. At the Hearing, the 1st Coram heard full submissions by counsel for both parties after which, the Appeal was adjourned for Decision.

h. On 25.2.2014, the Appeal was called up for Decision. The 1st Coram thereupon delivered its Decision allowing the Appeal and ordering that the Decision of the High Court be set aside and the matter be remitted to the High Court for damages to be assessed in favour of the Appellant.

i. By this application, the Respondents move this Honourable Court for an Order to set aside or discharge or otherwise review the Decision of the 1st Coram on the ground of apparent bias.

j. To start with, this Honourable Court has residual powers and jurisdiction to review, set aside or discharge its own previous Decision where the Applicants can establish that they have suffered procedural injustice. Where there is a real danger or perception of bias on the part of the coram impugning the Judgment, this amounts to procedural injustice.

The Appellant’s Background

k. The Appellant is a well known political personality in Malaysia. He is an elected representative of the Perak state legislature. He is also one of the leaders of the opposition coalition party, Pakatan Rakyat (PR) of which, Parti Islam Semalaysia (PAS) is a key component.

l. The Appellant leads the PAS in Perak.

m. As the leading member of PAS in Perak and a prominent opposition party personality, the Appellant stood as a candidate on the PAS ticket in the last 3 general elections, namely in 2004, 2008 and 2013.

n. After the General Elections of 2008, the Appellant, as the leader of the opposition coalition group, became the Chief Minister of Perak. He however lost this position after 3 opposition members defected. A member of the Barisan Nasional (BN) party assumed the position of the Chief Minister. The Appellant challenged the appointment of the BN member as the Chief Minister, but did not succeed.

o. The Appellant however remained a prominent member of PAS. He stood in the 2013 General Elections on the PAS ticket.

Honourable Justice Mohamad Ariff Bin Mohd Yusuf

p. The 1st Coram which heard the Appeal was chaired by the Honourable Justice Mohamad Ariff Bin Mohd Yusuf.

q. Justice Mohamad Ariff was an active member of PAS. The level of his involvement as an active member of PAS included standing as a candidate on the PAS ticket in the 2004 General Elections. As stated above, in that same General Elections, the Appellant also stood as a candidate on the PAS ticket.

r. Justice Mohamad Ariff did not win in the 2004 General Elections but His Lordship continued to be involved in PAS as an active member.

s. His Lordship was even an elected committee member of the PAS’s liaison for Selangor for the 2007 to 2009 session.

t. Amongst His Lordship’s further involvement with PAS was acting as their legal advisor and counsel in several election petitions.

Relationship with the Appellant

u. His Lordship and the Appellant had been active members of PAS. They both contested on the PAS ticket in the 2004 General Elections.

v. As fellow active members of PAS contesting in the General Elections, it is reasonable to any objective observer to conclude that they share a close relationship founded on their common political aspirations.

w. In particular, in the 2004 General Elections, His Lordship and the Appellant would have campaigned substantively to further the interests of their political party. In short, they were comrades-in-arms.

x. Having regard to their respective positions as fellow active members of PAS, it would be reasonable for any objective and fair minded member of the public to conclude that His Lordship even shared a personal relationship with the Appellant. It is also reasonable to conclude that in view of their shared political ideology and aspirations, this relationship would have been deep-seated, not just casual.

Prior Recusal

y. After His Lordship’s elevation to his former position as a Judicial Commissioner of the High Court, amongst the cases assigned to him was the matter involving the application for Judicial Review filed by the Appellant sometime in February 2009 for, inter alia, a Declaration that he was the legitimate Chief Minister of the state of Perak.

z. When the matter came up for Hearing, His Lordship offered to recuse himself from the matter. His Lordship did so on the grounds that he had been a legal advisor and counsel for PAS and had been involved in PAS’s legal matters from time to time.

{. As such, His Lordship held the view that his recusal was essential to preserve justice and integrity of the institution.

|. It was therefore only less than 5 years ago that His Lordship considered it proper and essential to offer to recuse himself in a matter involving his former comrade-in-arms and political ally.

}. Indeed, by any objective standard, that was a proper position that His Lordship took to preserve the integrity of the justice system, to maintain procedural justice and to maintain public confidence in the institution and the judiciary in particular.

~. The present case involved the same Plaintiff (Appellant). In the short period of less than 5 years, His Lordship’s relationship and affiliation with the Appellant would not have significantly diluted.

. It is notable that there is also a political element in the present case which the Appellant himself raised both in the High Court and in this Appeal. This political element is in the form of his assertion that the 1st Respondent is and has always been a media tool used by the ruling party to unfairly criticise and run down the opposition parties while enhancing the position of the ruling party. The 1st Respondent denied and denies this assertion but for the purpose of this application, it is clear that from this perspective, introduced by the Appellant himself, there is an element of fundamental conflict between the opposition party and the ruling party.

€. In the premises, if His Lordship had rightly recused himself in the judicial review application filed by the Appellant to challenge the appointment of the BN member as the Chief Minister of Perak, His Lordship should also have taken the same position in the present case.

Perception of Bias/Apparent Bias

. It is the Respondents’ case that the undisputed facts of His Lordship’s substantive and active involvement in PAS up to as recently as 2008, any reasonable, objective and fair minded member of the public would form a perception of bias on His Lordship’s part in sitting in Judgment in the present case.

‚. The perception of bias would be even more compelling given that the dispute in the present case involves a political element and issues of politics.

ƒ. Against this background, there is a real danger of bias on the part of the 1st Coram in adjudicating this Appeal.

„. The fundamental principle that justice must not only be done but must be seen to be done, must be applied in substance and form. The impartiality of the judiciary is a pillar and bulwark of the judicial system. The very fabric of the legal system is anchored on this principle. This also forms the foundation for the administration of the rule of law.

…. To preserve the integrity of the system and to maintain the confidence of the public in the administration of justice, there should be no perception of bias or any real danger of bias.

†. Having regard to the factual background as set out above, the perception of bias or a real danger of bias clearly exists in the present case.

‡. His Lordship, with the greatest of respect, should have offered to recuse himself from this case or at least declared his position, just as His Lordship did in the previous case involving the same Plaintiff (Appellant).

Respondents’ Counsel had no Knowledge of Justice Mohamad Ariff Bin Mohd Yusuf’s Connection to PAS and the Appellant

ˆ. The Appeal was fixed for Hearing on 28.10.2013. The Respondents’ counsel became aware of the constitution of the 1st Coram only in the morning of the Hearing, as in all cases in the Court of Appeal.

‰. The Respondents’ counsel had no knowledge of His Lordship’s prior involvement and connection with PAS.

Š. As such, the Respondents could not have raised any objection on the issue of the constitution of the 1st Coram at that time.

‹. The Respondents’ counsel proceeded in the usual way to argue the Appeal.

Œ. After the Hearing, when the matter was adjourned for Decision, the issue of the composition of the 1st Coram was never drawn to the Respondents’ attention

. It was only the day after the Decision was delivered by the 1st Coram that the issue was highlighted.

Coram Failure

Ž. By law, the Court of Appeal shall consist of at least 3 Judges of Appeal. If this legal requirement is not met, there will be no coram recognized in law.

. Where one member of the coram should have been disqualified on the ground that his inclusion in the coram gives rise to a real danger of bias, this member cannot in law be considered to be a legitimate member of the panel. Since only 2 Judges of Appeal remain, there will be no coram recognized in law. As such, there would be a coram failure in this situation.

. In the present case, the Honourable Justice Mohamad Ariff Bin Mohd Yusuf, with respect, ought not to have been included in the 1st Coram for the reason that his inclusion gave rise to a real danger of bias for the reasons set out above.

‘. The Honourable Justice Mohamad Ariff Bin Mohd Yusuf should have been disqualified to sit in Judgment of this Appeal.

’. In the premises, there was no legal coram recognized in law, resulting in a coram failure. For this further reason, the Decision delivered by a coram which has failed in law cannot stand. It should therefore be set aside.

“. It is fundamentally important that in the proper administration of justice, there should be no departure from the standard of even-handed justice which the law requires from the Bench. The integrity of the legal system is founded on the key principle that every single adjudication must be predicated by an independent mind, without any inclination or bias towards one side or other in any dispute. There should not even be a perception of a bias.

”. The objective facts establishing the prior involvement and relationship of the Honourable Justice Mohamad Ariff Bin Mohd Yusuf plainly and unmistakably give rise to a real danger or perception of bias on His Lordship’s part in sitting in Judgment of this Appeal.

•. This has fundamentally tainted the Judgment such that it should not be allowed to stand. In any event, there was no legal coram capable of passing Judgment.

Further grounds of this application appear in the affidavit of DATUK MOHD ASHRAF BIN ABDULLAH filed herewith.

Dated this ​day of​, 2014.

______________________
REGISTRAR
COURT OF APPEAL
PUTRAJAYA

To:-

​The Appellant and/or his solicitors
Messrs Awi & Co
Advocates & Solicitors
No. 28A, Hala Taman Meru II
Pusat Komersial Meru 2B
30020 Ipoh
Perak
(Ref: AFA/MFA/Bm/1868)
This Notice of Motion is filed by Messrs T H Liew & Partners, solicitors for the Respondents abovenamed and whose address for service is at Level 3 Block B, Plaza Damansara, No. 45 Medan Setia 1, Bukit Damansara, 50490 Kuala Lumpur.

Tel​:​03 – 2089 5000
Fax​:​03 – 2089 5001
Ref​: ​LTH/STMB-TV3/01649-12

CA.NOM(1649).snpf.050314.lqs(BI)

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

TV3 reported on the notorious twitters messages which DAP-Puppet-Menteri Besar Ir Nizar Jamaluddin sent to demean HRH Sultan Johor for the latter’s private bid of RM520,ooo for the registration number ‘WWW 1’ in the public tender by JPJ. Ir Nizar used these reports to sue TV3 for defaming him.

HRH Tuanku Sultan Ibrahim Ismail Ibni Almarhum Sultan Iskandar Al Mutawakkil Allallah mentioned about DAP-Puppet-Menteri-Besar Ir Nizar’s outrageous tweets about the bid for the ‘WWW 1’ in his titah during the opening of the Johor State Assembly on 14 June 2012.

Kuala Lumpur High Court dismissed Ir Nizar’s suit on 12 April 2013.

It is believed that Justice Ariff is politically inclined towards PAS. He was PAS candidate for DUN Kota Damansara in 11th General Election April 2004 but saw defeat to UMNO candidate Dato’ Mokhtar Dahlan.

Justice Dato' Mohamad Ariff Mohd. Yusoff

Justice Dato’ Mohamad Ariff Mohd. Yusoff

When DAP-Puppet-Menteri-Besar Ir Nizar Jamaluddin took 10th Menteri Besar of Perak Dato Dr Zambry A Kadir to Court after HRH Paduka Seri Sultan Perak dismissed the former as MB Perak and instead offered the latter and ADUNs Barisan Nasional for form the Perak State Govt in February 2009, Justice Ariff recused himself from hearing the case.

Managing Editor of TV3 Dato’ Ashraf Abdullah submitted an affitdavit when TV3 filed the motion to impugn the Court of Appeal decision on 25 Feb 2014.

IN THE COURT OF APPEAL MALAYSIA
(APPELLATE JURISDICTION)
CIVIL APPEAL NO: W-02(NCVC)(W)-1152-05/2013

BETWEEN

DATO’ SERI MOHAMMAD NIZAR BIN JAMALUDDIN​ … APPELLANT

AND

1. SISTEM TELEVISYEN MALAYSIA BERHAD
(Company No : 106645-T)

2. ROHANI NGAH
(Sued as the publisher of Buletin Utama (TV3)
of 30.5.12) ​ … RESPONDENTS

(In the Matter of the High Court Of Malaya At Kuala Lumpur
In the Federal Territory
(Civil Division)
Civil Suit No. 23NCVC-84-07/2012

Between

Dato’ Seri Mohammad Nizar Bin Jamaluddin​ … Plaintiff
And

1. Sistem Televisyen Malaysia Berhad
(Company No : 106645-T)

2. Rohani Ngah
(Sued As The Publisher Of Buletin Utama (Tv3)
Of 30.5.12) ​ … Defendants

decided by the Honourable Justice Datin Yeoh Wee Siam in the High Court of Malaya at Kuala Lumpur on 12th April 2013)

AFFIDAVIT

I, DATUK MOHD ASHRAF BIN ABDULLAH (NRIC No. 670310-05-5561) care of No. 3 Persiaran Bandar Utama, 47800 Petaling Jaya, Selangor Darul Ehsan do solemnly and sincerely affirm and say as follows:

1. I am the Group Managing Editor, TV Networks in Media Prima Berhad in the employment of the 1st Respondent and I am authorised by the Respondents to make this affidavit on their behalf.

2. Unless I expressly state to the contrary, I make this affidavit from personal knowledge and from documents, records and other information available to me in my stated capacity. Such facts as I depose to in this Affidavit are true to the best of my information, knowledge and belief.

3. I make this Affidavit to support the Respondents’ application for an Order that the Decision of this Honourable Court given on 25.2.2014 be set aside or discharged with consequential Orders including an Order that the Appeal be fixed before a freshly constituted coram for a re-hearing.

4. I first set out the brief factual background leading to this application.

Factual Background

5. On 30.5.2012, the 1st Respondent aired over its Buletin Utama programme, a report concerning the tweet message sent by the Appellant containing his views on the bid made by the Sultan of Johor for the vehicle registration No. WWW 1.

6. The Appellant claimed that Buletin Utama report defamed him. He therefore instituted an action in libel against the Respondents by a Writ filed on 13.7.2012 in Kuala Lumpur High Court Civil Suit No. 23NCVC-84-07/2012 (the High Court Suit).

7. The High Court Suit came on for Trial before the Honourable Justice Datin Yeoh Wee Siam over two days in January 2013. I attended the Trial to give evidence as one of the witnesses for the 1st Respondent.

8. I am advised and verily believe that on 12.4.2013, Her Ladyship delivered her Decision dismissing the Appellant’s claim with no Order as to costs. A copy of the Grounds of Judgment is annexed hereto and marked as Exhibit ‘MAA-1’.

9. I am further advised that the Appellant, being dissatisfied with the High Court Decision, filed an Appeal in Civil Appeal No. W-02(NCVC)(W)-1152-05/2013 to this Honourable Court on 9.5.2013.

10. I am advised that the Appeal came up for hearing on 28.10.2013 before a panel led by the Honourable Judge of Appeal, Justice Mohamad Ariff Bin Mohd Yusuf, and consisting of the Honourable Judges of Appeal, Justice Abang Iskandar bin Abang Hashim and Justice David Wong Dak Wah (the 1st Coram).

11. I am further advised that at the Hearing, the 1st Coram heard full submissions by counsel for both parties after which, the Appeal was adjourned for Decision.

12. I am advised that on 25.2.2014, the Appeal was called up for Decision. The 1st Coram thereupon delivered its Decision allowing the Appeal and ordering that the Decision of the High Court be set aside and the matter be remitted to the High Court for damages to be assessed in favour of the Appellant. A copy of the Grounds of Decision given by this Honourable Court has since been provided and a copy is annexed hereto and marked as Exhibit ‘MAA-2’.

13. By this present application, the Respondents move this Honourable Court for an Order to set aside, discharge or otherwise review the Decision of the 1st Coram on the ground of apparent bias.

Jurisdiction

14. I am advised and verily believe that this Honourable Court has residual powers and jurisdiction to review its own Decision where the affected party has suffered procedural injustice.

15. I am further advised and verily believe that the residual powers and jurisdiction of this Honourable Court can be invoked to set aside or discharge a Decision of this Honourable Court where there is a real danger or perception of bias on the part of the original coram.

16. I am also advised that apparent bias on the part of the coram sitting in Judgment of the case and delivering the Judgment is a fundamental procedural injustice that this Honourable Court is empowered to redress.

The Appellant’s Background

17. The Appellant is a well known political personality in Malaysia. He is an elected representative of the Perak state legislature. He is also one of the leaders of the opposition coalition party, Pakatan Rakyat (PR) of which, Parti Islam Semalaysia (PAS) is a key component.

18. The Appellant leads PAS in Perak.

19. As the leading member of PAS in Perak and a prominent opposition party personality, the Appellant stood as a candidate on the PAS ticket in the last 3 general elections, namely in 2004, 2008 and 2013.

20. After the General Elections of 2008, the Appellant, as the leader of the opposition coalition group, became the Chief Minister of Perak. He however lost this position after 3 opposition members defected. A member of the Barisan Nasional (BN) party assumed the position of the Chief Minister. The Appellant challenged the appointment of the BN member as the Chief Minister, but did not succeed.

21. The Appellant however remained a prominent member of PAS. He stood in the 2013 General Elections on the PAS ticket.

Honourable Justice Mohamad Ariff Bin Mohd Yusuf

22. I am advised and verily believe that the 1st Coram which heard the Appeal was chaired by the Honourable Justice Mohamad Ariff Bin Mohd Yusuf.

23. I am further advised and verily believe that Justice Mohamad Ariff was an active member of PAS. The level of his involvement as an active member of PAS included standing as a candidate on the PAS ticket in the 2004 General Elections. Annexed hereto and marked as Exhibit ‘MAA-3’ is a copy of an extract from the Report of the General Elections 2004 containing the results of the General Elections for the Kota Damansara seat which His Lordship contested as a PAS candidate.

24. As stated above, in the same General Elections, the Appellant also contested as a PAS candidate. A copy of the extract from the Report of the General Elections 2004 indicating the results for Kuala Kangsar where the Appellant contested as a PAS candidate is annexed hereto as Exhibit ‘MAA-4’.

25. As the extract in Exhibit ‘MAA-3’ shows, Justice Mohamad Ariff did not win in the 2004 General Elections but I verily believe that His Lordship continued to be involved in PAS as an active member.

26. I am advised that His Lordship was even an elected committee member of the PAS’s liaison for Selangor for the 2007 to 2009 session. A copy of the list of members of the Selangor Liaison Committee Body (Badan Perhubungan) of PAS, which includes the name of the Honourable Justice Mohamad Ariff Bin Mohd Yusuf is annexed hereto as Exhibit ‘MAA-5’. This list is extracted from the PAS Selangor’s website.

27. I am further advised and verily believe that amongst His Lordship’s further involvement with PAS was acting as their legal advisor and counsel in several election petitions. His Lordship’s involvement as the legal advisor and counsel for PAS involved election petitions in 2006 and 2008. In this regard, I annex hereto as Exhibit ‘MAA-6’ an assortment of news clippings concerning His Lordship’s involvement as counsel for PAS in these election petitions.

28. Having traced the reports involving His Lordship’s activities as the legal advisor and counsel for PAS, it appears that His Lordship continued in these activities up until 2008 and just before His appointment as Judicial Commissioner of the High Court.

Relationship with the Appellant

29. From the news reports referred to above, I verily believe that His Lordship and the Appellant had been active members of PAS. They both contested on the PAS ticket in the 2004 General Elections.

30. I further say that as fellow active members of PAS contesting in the General Elections, it is reasonable to any objective observer to conclude that they share a close relationship founded on their common political aspirations.

31. In particular, in the 2004 General Elections, it is reasonable to suppose that His Lordship and the Appellant would have campaigned substantively to further the interests of their political party. In short, they were comrades-in-arms.

32. Having regard to their respective positions as fellow active members of PAS, it would be reasonable for any objective and fair minded member of the public to conclude that His Lordship even shared a personal relationship with the Appellant. It is also reasonable to conclude that in view of their shared political ideology and aspirations, this relationship would have been deep-seated, not just casual.

Prior Recusal

33. I verily believe that after His Lordship’s elevation to his former position as a Judicial Commissioner of the High Court, amongst the cases assigned to him was the matter involving the application for Judicial Review filed by the Appellant sometime in February 2009 for, inter alia, a Declaration that he was the legitimate Chief Minister of the state of Perak.

34. I verily believe that when the matter came up for Hearing, His Lordship offered to recuse himself from the matter. His Lordship did so on the grounds that he had been a legal advisor and counsel for PAS and had been involved in PAS’s legal matters from time to time. As such, His Lordship held the view that his recusal was essential to preserve justice and integrity of the institution. I annex hereto collectively marked as Exhibit ‘MAA-7’ an assortment of press articles reporting on the proceedings in which His Lordship offered to recuse himself.

35. It was therefore only less than 5 years ago that His Lordship considered it proper and essential to offer to recuse himself in a matter involving his former comrade-in-arms and political ally.

36. Indeed, I state that by any objective standards, that was a proper position that His Lordship took to preserve the integrity of the justice system, to maintain procedural justice and to maintain public confidence in the institution and the judiciary in particular.

37. The present case involved the same Plaintiff (Appellant). In the short period of less than 5 years, His Lordship’s relationship and affiliation with the Appellant would not have significantly diluted.

38. It is notable that there is also a political element in the present case which the Appellant himself raised both in the High Court and in this Appeal. This political element is in the form of his assertion that the 1st Respondent is and has always been a media tool used by the ruling party to unfairly criticise and run down the opposition parties while enhancing the position of the ruling party. In the Trial, I specifically denied the allegation and I continue to deny it now but for the purpose of this application, it is clear that from this political perspective, introduced by the Appellant himself, there is an element of fundamental conflict between the opposition party and the ruling party.

39. In the premises, I am advised and verily believe that if His Lordship had rightly recused himself in the judicial review application filed by the Appellant to challenge the appointment of the BN member as the Chief Minister of Perak, His Lordship should also have taken the same position in the present case.

Perception of Bias/Apparent Bias

40. It is the Respondents’ case that the undisputed facts of His Lordship’s substantive and active involvement in PAS up to as recently as 2008, any reasonable, objective and fair minded member of the public would form a perception of bias on His Lordship’s part in sitting in Judgment in the present case.

41. It is my honest belief that the perception of bias would be even more compelling given that the dispute in the present case involves a political element and issues of politics.

42. Against this background, I am advised and verily believe that there is a real danger of bias on the part of the 1st Coram in adjudicating this Appeal.

43. I am further advised and verily believe that the fundamental principle that justice must not only be done but must be seen to be done must be applied in substance and form. The impartiality of the judiciary is a pillar and bulwark of the judicial system. The very fabric of the legal system is anchored on this principle. This also forms the foundation for the administration of the rule of law.

44. I also verily believe that to preserve the integrity of the system and to maintain the confidence of the public in the administration of justice, there should be no perception of bias or any real danger of bias.

45. Having regard to the factual background as set out above, I verily believe that the perception of bias or a real danger of bias clearly exists in the present case.

46. His Lordship, with the greatest of respect, should have offered to recuse himself from this case or at least declared his position, just as His Lordship did in the previous case involving the same Plaintiff (Appellant).

Respondents’ Counsel had no Knowledge of Justice Mohamad Ariff Bin Mohd Yusuf’s Connection to PAS and the Appellant

47. I am advised and verily believe that the Appeal was fixed for Hearing on 28.10.2013 when the Respondents’ counsel became aware of the constitution of the 1st Coram only in the morning of the Hearing, as in all cases in the Court of Appeal.

48. I verily believe that the Respondents’ counsel had no knowledge of His Lordship’s prior involvement and connection with PAS.

49. As such, we could not have raised any objection on the issue of the constitution of the 1st Coram at that time.

50. I am advised that the Respondents’ counsel proceeded in the usual way to argue the Appeal.

51. I am further advised that after the Hearing, when the matter was adjourned for Decision, the issue of the constitution of the 1st Coram and its implication was never drawn to our attention. This issue was only highlighted the day after the Decision was delivered.

Coram Failure

52. I am advised and verily believe that by law, the Court of Appeal shall consist of at least 3 Judges of Appeal. If this legal requirement is not met, there will be no coram recognized in law.

53. I am further advised that where one member of the coram should have been disqualified on the ground that his inclusion in the coram gives rise to a real danger of bias, this member cannot in law be considered to be a legitimate member of the panel. Since only 2 Judges of Appeal remain, there will be no coram recognized in law. As such, there would be a coram failure in this situation.

54. I verily believe that in the present case, the Honourable Justice Mohamad Ariff Bin Mohd Yusuf, with respect, ought not to have been included in the 1st Coram for the reason that his inclusion gave rise to a real danger of bias for the reasons set out above.

55. As such, I am advised and verily believe that the Honourable Justice Mohamad Ariff Bin Mohd Yusuf should have been disqualified to sit in Judgment of this Appeal.

56. In the premises, I am advised and verily believe that there was no legal coram recognized in law, resulting in a coram failure. For this further reason, the Decision delivered by a coram which has failed in law cannot stand. It should therefore be set aside.

Conclusion

57. It is my honest belief that it is fundamentally important that in the proper administration of justice, there should be no departure from the standard of even-handed justice which the law requires from the bench.

58. I verily believe that the integrity of the legal system is founded on the key principle that every single adjudication must be predicated on an independent mind, without any inclination or bias towards one side or other in any dispute. There should not even be a perception of a bias.

59. I further verily believe that the objective facts establishing the prior involvement and relationship of the Honourable Justice Mohamad Ariff Bin Mohd Yusuf plainly and unmistakably give rise to a real danger or perception of bias on His Lordship’s part in sitting in Judgment of this Appeal.

60. This has fundamentally tainted the Judgment such that it should not be allowed to stand. In any event, there was no legal coram capable of passing Judgment.

61. For all the reasons set out above, I humbly and respectfully pray for an Order in terms of this application.

AFFIRMED by the deponent named​)
DATUK MOHD ASHRAF BIN ABDULLAH​)
affirmed on this 5th day of March, 2014​​)
at Kuala Lumpur​ ​)

Before me,

COMMISSIONER FOR OATHS

This Affidavit is filed by Messrs T H Liew & Partners, solicitors for the Respondents whose address for service is at Level 3 Block B, Plaza Damansara, No. 45 Medan Setia 1, Bukit Damansara, 50490 Kuala Lumpur.

Tel​:​03-2089 5000
Fax​:​03-2089 5001
Ref​: ​LTH/STMB-TV3/01649-12

Aff.(NOM)(1649).snpf.050314.lqs.(BI)

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

The Star report on 18 Feb 2009 quoted Justice Ariff’s reason to recuse himself from hearing the suit by DAP-puppet-Menteri-Besar Ir Nizar Jamaluddin against 10th MB Perak Dato’ Dr Zambry Abdul Kadir on the grounds that he is a legal man for PAS and often acted for PKR.

                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

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

It is by Justice Ariff’s admission, which was quoted by The Star that he is involved with PAS on its legal matters. DAP-Puppet-Menteri-Besar Ir Nizar Jamaluddin is an AJK Pusat PAS. It is doubtful how someone who had a political conviction could remain to be impartial presiding a case where a senior party official appealing a case, which was political in nature.

It is very interesting game since all the while its the same tactics played by Opposition Leaders when Courtroom decisions are not in their favour.

*Updated 2000hrs

Published in: on March 6, 2014 at 13:45  Comments (17)  

The URI to TrackBack this entry is: https://bigdogdotcom.wordpress.com/2014/03/06/tv3-strikes-back/trackback/

RSS feed for comments on this post.

17 CommentsLeave a comment

  1. As I pointed out earlier, if the justice is still an active member of a political party, then he should not be in the bench in the first place, or in this case be removed from the bench altogether for breaching the Judges Code of Ethics 1994.

    As for Tv3 loyar;

    ‰”…..The Respondents’ counsel had no knowledge of His Lordship’s prior involvement and connection with PAS.

    As such, the Respondents could not have raised any objection on the issue of the constitution of the 1st Coram at that time…..”

    Alahai…, this will not hold water lah brother. Are you telling your client (and us) that you didnt do your homework? It is all in public domain, even casual observer like us knew about it. If you don’t know that, then you are not worth whatever fee you are getting.

    Asraff – demand for a discount!!

    • This justice Mohamad Ariff ALWAYS decides in favour of PAS. Noted case inclvolving Husam Musa and blogger Ruang Bicara Faizal.

      I am glad that TV3 is taking him on.

      And what is the Chief Justice doing about this bloke?

    • Interesting Varuna. But to be fair to TV3 lawyers, they cannot be checking the background of each and every judge lah.

      In any case, the judge has an obligation under the law to declare at the beginning of the trial, if he is an interested party, is or was connected to any of the parties in any manner. In this case, for reasons best known to him, he didn’t.

      See the Pinochet extradition case where the decision made by the law lords could not stand because one of them, Lord Hoffman, was later found to be an “interested party” because his wife was involved in Amnesty International. Pinochet was successful in getting a new coram to hear the case. He was disqualified because he failed to declare his interest. This is very similar to the TV3 case. Pinochet’s lawyer also did not know at the beginning of the case the Lord Hoffman was an interested party.

      • Saudara Jamaluddin,

        I still feel that is not good enough an excuse. In Nizar vs Zambry Feb 2009 the same Judge offers to recuse himself for similar reason. So even if they are “blind” to the public happenings that obviously have implication to the case and client they are representing, the Nizar vs Zambry case should have been checked as surely it is available on judicial record somewhere.

    • Agree the Judge should be removed from the Bench as he is an active member of a political party. The Chief Justice is oblivious to the fact that the Judge is an active member of PAS? Or he has a different interpretation of the word “active”?

      Btw, why are they called “Justice”? The title “Judge” won’t do? And what do we do with the politicians “Yang Berhormat” who are not “berhormat”? One was even found guilty of murder.

      Ignorance is no excuse under the law, but was the case of the TV3 loyar an “ignorance”? If it was deliberate, what do we call that?

      Not possible it was deliberate? Same thing as not possible the Deputy Public Prosecutor for the Sodomy II first trial not fighting hard enough to win the case against Anwar Al Juburi? No long after that he defended Anwar, what. In another case in court.

      Not accusing, just asking.

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

  3. I have a question each for the Chief Justice and the Bar Council

    1. How can the Chief Justice assign a judge who is former PAS official to hear a case involving a PAS leader?

    2. How can the Bar Council recommend a lawyer with such a political background to be appointed to the Bench? Unless the Bar Council is deliberately trying to fill the Judiciary with people who are favourable to the Opposition.

    • I think the assignment of cases is done by the Registrar of Courts. No doubt, at least with the knowledge of the Chief Justice.

      But did the Bar Council recommend all the lawyers who are appointed to he Bench?

      Anyone knows the process in the appointment of Judges? The role of the Chief Judge, the Bar Council, the political masters?

      High time these are being seriously re-looked, innit?

  4. Tun Ariffin Zakaria who is impersonating as our Chief Justice, should tell us why this Mohamad Ariff gets all the PAS cases.and each time, PAS wins.

    Ariffin hails from Pas-led Kelantan. See the connection?

  5. The principle here is that how could someone who by own admission (as per quoted in the press) is politically inclined and once stood in a general election as a candidate for a political party, preside on an appeal case by a senior party leader of the party which the said judge is affiliated to?

    Doesn’t matter if TV3’s counsels are obtuse and reckless in their work.

    Is it unfair to take the judge as ‘biased’?

    • What the bloody hell is happening to this country? Is it going to the dogs already? Judges seen as “biased” and “unfair”. Anwarul Al Juburi got off from Sodomy II trial first round and not long after that the Deputy Public Prosecutor handling the case was in the team defending Anwar on another case?

      Didn’t the Judge referred to here resign when he stood for elections? Aren’t judges deemed to be government officers? The Judges Code of Ethics 1994 specifically says they are not?

      All government officers have to resign their posts if they take active part in politics. Otherwise disciplinary action is taken against them towards getting them out of the service. Being a member of a political party – even the opposition – is alright. But when such a bloke stood for elections – general or party elections – it is not alright.

      It is unfair if Judges are excluded from the rule that government officers must resign when they take active part in politics, especially contesting in general elections. Surely they cannot be deemed as neutral when deciding cases with political overtones. And so many cases are like that these days.

      Yes, what is the Chief Justice doing about all these? The Judges Code of Ethics 1994 is also out of date? The Bar Council wants Bersih kind of code? Demonstrations on the streets? Now want the charge on the Air Force Major who did not respect the military code of conduct to be dropped? Yes, what the hell is happening to this country? Get ISA back. Get Najib replaced by a no-nonsense leader who will get things back in order.

      • SOKONG SOKONG SOKONG

      • Is the govt. filled with sick people ?

      • No, the govt. is not filled with sick people. Only a few blokes are sick, including among the political masters. But more of such people are in the Opposition.

        The UMNO/BN govt. is still good, will always be good. Heaven forbid any other, especially not the Pakatoons and the Keadilan goons.

        What is needed is changing the helm, Najib has reached his expiry date, his brand of politics cannot work in this country where a significant percentage of the population does not respect the Constitution, the DAP is anti-Malay, anti-Islam and caused the race riots of 1969, Anwar of PKR is unprincipled, does anything out of convenience, the Pakatoon coalition he seems to be leading is not even registered.

  6. BD,

    Pls allow this Stop Press kind of news:

    ANWAR FOUND GUILTY.

    Here’s Malaysiakini’s “Live” report –

    4.52pm: Court resumes.

    4.55pm: Justice Balia Yusof says this is a unanimous decision.

    4.57pm: The prosecution says the judge have erred in its decision.

    “The learned judge had misconstrued on the integrity of the samples. He ruled there was tampering of the HKL plastic bag.

    “We have scrutinise evidence of the IO Jude Blacious what he did was cut the bottom of the plastic and put the recepticle, in each envelope.”

    “The tampering is on the plastic bag and not the evidence. The seals of the samples are intact and did not compromise the samples.”

    He said if the learned judge conclude the tampering is on the plastic bag only, and having examined the grounds in the judgment.

    “We find the judge has no reason to depart from his earlier finding (in calling the defence).”

    “The learned judge has failed and appreciate in coming to the conclusion. The judge has erred in listening to the foreign experts.

    “We find the judge had misdirected itself on the issue of the integrity of the sample.

    “We allow the appeal and found guilty of the charge.”

    5:03pm: Karpal applies for mitigation to be done next week.

    thestar.com.my only manages to print their headline as of now –

    Updated: Friday March 7, 2014 MYT 5:11:25 PM
    Anwar sodomy appeal: Guilty

    • Here’s what the Malaysiakini reporter/ editor tried to jumble up and confuse readers in the above report of theirs (below is from New Straits Times):

      ‎The leading Judge,Balia, speaking on behalf of the whole panel, ruled that the trial judge failed to judicially appreciate the evidence and give proper weight to prosecution witness testimonies.

      “PW25(Prosecution Witness 25 investigating Officer Supt Jude Blacious Pereira) had merely cut open P27(the plastic) to remove the receptacles(containing the semen samples) to be put into separate envelopes.

      “It is beyond dispute the tampering is only to the plastic and this is supported by PW25.

      The receptacles were intact. If they had been tampering, the (semen)samples were undisturbed,” Balia said.

      Balia said the court is of the view that the trial judge had erred in giving weight to DW2(Defence Witness 2) and DW4 that seemed to be armchair experts.

      “We allow the appeal and set aside the High Court judgement,” Balia said before ruling that Anwar is found guilty of the offence.

      Note that TS Shafee objected to defence’s request that mitigation be done next week because this case been going on for years. Defence was given 1 hour to prepare their mitigation.

      • Finally, a huge disappointment for me – Anwar to spend only 5 years in prison, given a stay of execution and only RM10,000 bail.

        6.46pm: Judge Balia says the court having heard what the counsel told the court and found Anwar guilty.

        “He is convicted and sentenced to five years.”

        6.52pm: Judge Balia asks the two sides to stop arguing. Justice Balia says the application of stay of execution is allowed, pending appeal, with bail of RM10,000.

        He can still create all sorts of nuisance until the next Appeal is heard.


Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: