PAS for all but justice only for PAS?

It came as a surprise to us when Court of Appeal overturn the High Court judgement which threw out the defamation suit by former Menteri Besar of Perak from PAS, Dato Nizar Jamaluddin. He had clearly insulted the Sultan of Johor and TV3 was merely reporting but the Court of Appeal ruled in favour of the Nizar.

Two days ago, another PAS leader, Dato Husam Musa managed to get the Court of Appeal to overturn the judgement of High Court in Kota Baru involving a defamation suit against one Faisal Robhan Ahmad. It is equally strange since Husam's lawyers failed to establish that Faisal is the blogger RBF Online.

In both cases, there is one common denominator and that is the presence of judge Datuk Mohamed Arif, who ran for election under PAS banner in 2004. [Read MyKMU here.]

He should have recused himself from participating in both case in accordance to precedent set by former Chief Justice, Tun Zaki Azmi, who recused from participating in any cases involving UMNO since he had once been the Legal Advisor to UMNO. 

If a judge whose provided legal advises to UMNO is not seen as a precedent, since the legal services is full of liars who twist and turn at their whims and fancy to fulfill their interest irrespective of the logic and consistency, then consider this news below:


On December 8, 1998 that is about 16 years ago, Associated Press, not the vilified Utusan Malaysia or TV3, lawyers for General Pinochet seeked to overturn a decision by the House of Lord on the ground that the wife of one of judges was an administrative assistant to Amnesty International.

Amnesty International have indirect interest in the case and judge's wife position is minor, but that was sufficient to provide ground for lawyers to seek to over-turn the decision of the House of Lord and 5-members Law Lord to convene.

It is strange that the judge Datuk Arif did not excuse himself and the fellow two judges would allow for it. In one of the case, the judges viewed it as politically motivated and not legal in nature.

However, it for all to see that as a former candidate for PAS in 2004, he would be deemed as not impartial in both PAS leaders lawsuit. 

For justice to be done, the process of law must be fair and also be seen to be fair. Since it affects the life of one party if a bias decision is made, there must not be a shred of doubt in the process of law.

For that matter, the fellow judges are now seen as bias for allowing Justice Datuk Arif to preside.

As of yesterday, TV3 had submitted their application to impune the judge.

We have received a copy of legal document of the motion and affidavit filed to the court yesterday. Below is the reproduced motion:



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



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)


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.

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

bb.    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.

cc.    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.

dd.    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.

ee.    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.

ff.    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

gg.    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.

hh.    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.

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

jj.    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.

kk.    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.

ll.    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.

mm.    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

nn.    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.

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

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

qq.    The Respondents' counsel proceeded in the usual way to argue the Appeal.

rr.    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


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

Coram Failure

tt.    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.

uu.    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.

vv.    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.

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

xx.    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.

yy.    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.

zz.    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.

aaa.    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)


The affidavit as below: