Nizar vs Zambry: Judge offers to recuse himself

[quote=“The Malaysian Insider”]KUALA LUMPUR, Feb 18 Sparks flew from the get-go at the High Court this morning in the Menteri Besar vs Menteri Besar case pitting Pakatan Rakyat’s Datuk Seri Mohammed Nizar Jamaluddin against Barisan Nasional’s Datuk Zambry Abdul Kadir.

Nizar, represented by an eight-member legal team led by Sulaiman Abdullah, immediately moved to disqualify Perak State Legal Advisor Datuk Ahmad Kamal Md Shahid from acting as the lawyer for Zambry.

As expected, Sulaiman objected on the grounds that Zambry was sued in his personal capacity and not officially as the MB of Perak and had no right to use the state’s resources, including its state legal advisor.

He added that Ahmad Kamal had no “locus” or standing to be the Zambry’s counsel in the case.

Ahmad Kamal countered that Sulaiman’s objection was “premature” as he had yet to receive an affidavit from Nizar supporting his claims.

The sitting judge in the Appellate and Special Powers division, Justice Mohamad Ariff Yusof, also confounded the court when he volunteered to step down from hearing the case on the basis he had acted as legal advisor and counsel to Pas, PKR and Barisan Nasional on several legal matters in the past before he became a judicial commissioner.

Ariff explained he felt the need to recuse himself to preserve the integrity of the judicial institution and maintain the impartiality of the court so that justice may be seen to be done, saying that the interest of the public was paramount.

If you ask me, personally, I feel I should recuse myself,” Ariff said, but added several other options the contending parties could take included taking the matter directly to the Federal Court “in the interest of speed and finality”.

Ahmad Kamal supported Ariff’s suggestion.

He explained that Zambry had given him instructions to ask the judge to recuse himself and to ask that the case be transferred or be heard at the Ipoh High Court on grounds that Zambry and Nizar both live there and the fact that the case involves the Perak government and holds interest to the people of Perak.

Sulaiman disagreed with Ariff’s proposal to remove himself from overseeing the case. He also objected against the transfer to Ipoh, arguing the need for the case to be heard on “neutral territory and before a specialised court… dealing with judicial reviews”.

He reminded Ariff that he had a duty to uphold justice and his suggestion to recuse himself could be seen as evading his duty.

Sulaiman added that Ariff’s voluntary admission earlier proved that he would not be likely to be biased towards either Nizar or Zambry in this case.

Ariff postponed setting the date of mention to Feb 23.

He told the court he wants the views from the Attorney-General’s Chambers first on his own suggestion to recuse himself; the idea to move the case straight to the Federal Court; and the contention over the legal standing of Ahmad Kamal in representing Zambry.[/quote]

[quote=“PAS.org.my”]IPOH, 18 Feb - Jawatankuasa Hak dan Kebebasan DUN Perak yang dipengerusikan oleh Speaker DUN Perak, V. Sivakumar telah mengeluarkan surat rasmi melalui Setiausaha Dewan, Hj. Abdullah Antong supaya Menteri Besar dan 6 Exco kudeta Perak untuk dihadapkan di hadapan jawatankuasa tersebut jam 2.30 petang ini.

Kelmarin, Zambry telah dipanggil bersama dengan 2 orang wartawan akhbar cina untuk memberi keterangan kepada jawatankuasa yang sama.

Setelah dua proses pengadilan dilakukan oleh Jawatankuasa tersebut, menjangkaan satu keputusan rasmi akan ditentukan oleh jawatankuasa bagi menentukan hukuman yang setimpal dengan salah laku dan kesalahan yang dilanggar oleh pihak terbabit sesuai dengan peraturan 72(3) Peraturan Dewan, dan pelanggaran Undang-undang Tubuh Kerajaan Negeri Perak perkara 16(6) dalam hal berkaitan pelantikan Menteri Besar.

Pelanggaran kepada undang-undang yang sedia oleh pihak yang tidak sabar untuk mendapatkan kuasa jelas telah menimbulkan keadaan politik yang tidak menentu di Perak dan rasa tidak puas hati.[/quote]

[quote=“The Star”]IPOH: Perak Speaker V. Sivakumar has barred Mentri Besar Datuk Dr Zambry Abd Kadir from from attending all State Assembly sittings for 18 months

Dr Zambry’s six exco members have been barred for 12 months, Sivakumar said on Wednesday.

Sivakumar, in a statement, said the seven had failed to give any explanation during Wednesdays inquiry into a complaint that they had shown contempt for the House.

Dr Zambry and the six exco members have failed and did not give any explanation to the committee.

They failed to offer any explanation on their actions of contempt for the House and hence have been found guilty as charged, it said.

I (Sivakumar) have decided that Dr Zambry is, with immediate effect, suspended and barred from attending State Assembly sessions for 18 months while the six exco members are barred for 12 months, the statement added.

The drama unfolded at 2.55pm when the seven appeared for the inquiry before the states Committee of Special Privileges, chaired by Sivakumar, at the State Secretariat.

During the meeting however, the sole Barisan Nasional representative in the seven-member committee, Datuk Hasbullah Osman, was absent.

It is learnt that efforts by the other Pakatan Rakyat committee members to contact the latter were futile.

A cheerful Dr Zambry and his six-member exco panel entered the meeting room for about 30 minutes and exited later without speaking to the press.

I was summoned yesterday and I am here again today, Dr Zambry joked to reporters as he entered.

On Tuesday, Dr Zambry and two reporters were summoned before the committee to give statements on the formers statement in newspapers on Sivakumars conduct.

An exco member later revealed that the inquiry had gone on smoothly and without the exchange of heated arguments.

Dr Zambry made his objection to the committee. There was no question and answer session.

It was cordial and professional. After all, we are all grown-ups, said the exco member.

Canning assemblyman Wong Kah Woh, who was the complainant in the matter, told pressmen that he had presented his case before the committee.

I presented my complaint that Dr Zambry and his six false excos had shown contempt for the House when they were sworn into the Assembly via unconstitutional means, he said.

After Dr Zambry and his excos left, the committee convened its closed-door meeting until 5.05pm before Sivakumar left for his office.

At about 6.20pm, an aide distributed a press statement signed by Sivakumar, announcing that Dr Zambry and his exco members had been barred from the assembly.

The exco members are Dr Mah Hang Soon (Chenderiang), Datuk Ramly Zahari (Manong), Zainol Fadzi Paharuddin (Sungai Manik), Mohd Zahir Abdul Khalid (Kamunting), Hamidah Osman (Sungai Rapat), Datuk Saarani Mohamad (Kota Tampan).

After the statement was distributed, Sivakumar rushed away from reporters who chased after him for further details.

When pressed whether the Speaker had such powers to bar assemblymen without first bringing the matter to the House, Sivakumar said:

I will notify the House. He later left without another word.[/quote]

[quote=“Bernama”]KUALA LUMPUR, Feb 16 (Bernama) – Perak state legislative assembly Speaker V Sivakumar did not follow procedures in suspending Perak Menteri Besar Datuk Dr Zambry Abdul Kadir and six state executive councillors (excos) from the assembly’s sittings, said former Dewan Rakyat secretary Datuk Abdullah Abdul Wahab.

He said the decision to suspend them by the assembly’s Rights and Privileges Committee, which is part of the legislative process, must get the approval of the members of the assembly.

“The committee can only make recommendations. It is up to the assembly members to approve or reject the recommendations,” he told Bernama here on Wednesday.

He said only if the assemblymen approved the recommendations, such suspensions could be meted out.

Abdullah said this in commenting on a statement by V. Sivakumar today announcing the suspension of Zambry from attending Perak State Assembly sittings for 18 months.

The six excos - Datuk Ramly Zahari (Manong), Datuk Saarani Mohamad (Kota Tampan), Hamidah Osman (Sungai Rapat), Zainol Fadzi Paharuddin (Sungai Manik), Mohd Zahir Abdul Khalid (Kamunting) and Dr Mah Hang Soon (Chenderiang) - were suspended for 12 months. The suspensions were with immediate effect.

The committee took the action after receiving a complaints from Canning assemblyman Wong Kah Woh of the DAP, who alleged that their swearing-in as Menteri Besar and excos was in contravention of the state Constitution as Perak’s 10th Menteri Besar, Datuk Seri Mohammad Nizar Jamaluddin, had yet to officially resign, Sivakumar had said in a four-paragraph press statement released in Ipoh earlier Wednesday.

According to Abdullah, the Dewan Rakyat once took a similar action in suspending Fong Po Kuan (DAP-Batu Gajah) as a Member of Parliament, and it was done as per the Standing Orders.

On Dec 11 2001, Datuk Seri Dr Rais Yatim, who was then Minister in the Prime Minister’s Department, had moved a motion to have her suspended for six months for issuing a press statement that insulted Parliament and the Speaker Tun Dr Mohamed Zahir Ismail.

The decision to suspend Fong was put to a vote where 83 members supported it while 28 were against, and it was not done outside the assembly without the approval of its members, he said.

A senior legal practitioner in Ipoh, who did not want to be named, said the action taken by Sivakumar was “a clear violation of the Standing Orders of the State Legislative Assembly of Perak.”

He said under Rule 71 (2) of the orders, when the assembly is not in session, a member can inform the Speaker if there had been violations of the rights and privileges.

The Speaker, if he is satisfied with the complaint, can refer it to the Rights and Privileges Committee and the committee must report it to the assembly, he said.

He said the action was also “against the principles of natural justice” since the seven are the people’s elected representatives, and thus the decision would prevent them from carrying their responsibilities.

“More serious, Zambry and the six Excos are appointed by the Sultan of Perak and this action violates Article 12 of the Laws of the Constitution of Perak on the appointment of Menteri Besar and Article 16 on the appointment of Excos,” he said.

It also prevented the seven who have been appointed legally by the Sultan of Perak from carrying out their task in managing and developing the state, which is badly needed in facing the current economic uncertainties.

“Furthermore, were the seven issued summonses which detailed their wrong doings and allowed to defend themselves?” he asked.

Meanwhile, constitutional law lecturer Prof Dr Aziz Bari said that Sivakumar being the Speaker had the power to do so (mete out the suspensions).

“The Speaker is the master of the house…basically,” he said.

He said in the past, there had been cases of suspensions of state assembly persons by state assembly Speakers and Members of Parliament (MPs) by the Dewan Rakyat Speaker.

“The power of the Speaker is same,” he said, adding that throughout the Commonwealth, when it came to the power of the Speaker, it was the same.

“So, I don’t see how this problem (Perak) can be solved without having an election,” he added.[/quote]

[quote=“Bernama”]IPOH, Feb 18 (Bernama) – Menteri Besar Datuk Dr Zambry Abdul Kadir said he and the six executive council members will take “follow-up” actions following their suspensions by the state legislative assembly’s Rights and Privileges Committee.

He declined to say what the actions would be but said that the suspensions were made “in total disregard to the power of the Sultan of Perak to appoint the Menteri Besar and the executive council.”

The committee also barred Zambry and his executive council from attending the state legislative assembly for 18 months and 12 months respectively, effective Wednesday.

All of them were summoned to appear before the Rights and Privileges Committee following complaints by DAP assemblyman for Canning, Wong Kah Woh, who claimed that their appointment to their respective posts contravened the state constitution, and in contempt of the assembly because the 10th Menteri Besar Datuk Seri Mohammad Nizar Jamaluddin had not officially resigned.

Speaker V. Sivakumar who announced the suspension, said Zambry and his executive council failed to offer any explanation pertaining to their actions.

When contacted by Bernama, Zambry said, Sivakumar’s statement was “a serious lie.”

“His claim that we have failed to offer any explanation is a lie of the most serious nature ever committed by a speaker,” he said, adding that the speaker should have raised the matter during a state legislative assembly sitting and not acted “according to his whims and fancies.”

Zambry added that he and the executive councillors had stated their positions and raised preliminary objections to the charges brought against them.

He also said that their suspensions would also be sub judice as there was still a suit pending in the High Court challenging his appointment as the menteri besar.[/quote]

Most of the news backup the new appointed MB of Perak…hmm…

[quote=“antujelu”]Most of the news backup the new appointed MB of Perak…hmm…[/quote]Biasa la… lidah kerajaan. :mrgreen:

[quote=“The Star”]PUTRAJAYA: Attend the State Legislative Assembly sitting in order to serve the people and state of Perak this the directive from Datuk Seri Abdullah Ahmad Badawi to Perak Mentri Besar Datuk Dr Zambry Abd Kadir and his six executive councillors who have been suspended by the State Assembly Speaker.

Zambry and his exco members were appointed by the Sultan of Perak, Sultan Azlan Shah. The action taken by the Speaker V. Sivakumar to suspend them is regarded as not respecting, objecting and rejecting the Sultans decision.

What the Speaker has done is wrong. He cannot prevent these people from attending the State Assembly. I have spoken to Zambry about lodging a police report and he also shared the same idea. He told me that is what he intends to do, said Abdullah.

The Prime Minister said the situation in the state was becoming not only worse, but ridiculous. Speaking to reporters yesterday, he believed Zambry would also seek an audience with Sultan Azlan Shah to update the Perak Ruler on the situation.

On Wednesday, the Perak assembly Special Privileges Committee chaired by Sivakumar suspended Zambry and his exco members for between a year and 18 months for showing contempt to the House.

Abdullah also acknowledged this was Pakatan Rakyats way of trying to topple the new government.

With seven leaders unable to attend the state assembly sitting, Barisan would have fewer members should there be a need for a vote.

With the suspension, Barisan Nasional will have 21+3 members - comprising 21 representatives and the three Barisan friendly Independents while Pakatan has 27 representatives as the Speaker cannot cast a vote.

I am sure what is happening in the state has some negative effect on the people and they are not happy with what is going on.

When Pakatan won (in the last general election), we (Barisan) gave way to them to lead and administer the state. Now that the situation has changed with Barisan getting more support, then let us administer the state in peace, he said.

Abdullah said there was neither a need to dissolve the state assembly and pave the way for an election nor was it necessary to call for a state of emergency as had happened in Kelantan in 1978.

Asked on allegations by PKR de facto leader Datuk Seri Anwar Ibrahim that he had proof that Barisan had paid a PKR assemblyman to hop over, the Prime Minister declined to comment, saying: Let Anwar do what he wants to do.[/quote]

[quote=“NST”]The decision by Perak assembly speaker V. Sivakumar to suspend the menteri besar and his six executive councillors as assemblymen cannot be challenged in court, the Malaysian Bar Council said today.

Council president Datuk Ambiga Sreenevasan said: Regardless of whether the correct procedure was followed by the speaker and the Committee of Special Privileges, under Article 72 of the Federal Constitution their conduct and the validity of the their proceedings may nevertheless be outside the jurisdiction of the courts.

She said the doctrine of separation of powers means the judiciary could not interfere in the workings of Parliament or the state legislative assemblies.

Ambiga said in a faxed statement to the media that this also means that there should be no Executive influence in the workings of Parliament and state legislative assemblies.

We say this as it has been reported that there are attempts to lodge police reports against the speaker of the Perak state assembly, which would violate these provisions, said Ambiga.
Ambiga said wrestling over the constitutional and legal issues would not solve the political problem in Perak.

Going back to the people of Perak will. We urge the parties involved to seriously consider doing so, not only in the interest of the people of Perak but also in the interest of stability and the nation as a whole, she said.[/quote]

[quote=“Bernama”]KUALA LUMPUR, Feb 19 (Bernama) – DAP national chairman Karpal Singh said the decision of the Perak State Assembly Rights and Privilages Committee to suspend Menteri Besar Datuk Dr Zambry Abdul Kadir and his six council members must be endorsed by the state assembly.

Karpal, who is also a prominent lawyer, said Perak State Assemby Speaker V. Sivakumar has to convene a sitting of the assembly to enable the decision to be debated and put to a vote.

"The Perak constitution provides that when the assembly is not in session, the Speaker can refer complaints to the committee of privileges, which he heads. If he finds a prima facie case, any findings or decisions must be reported to the assembly.

“It is my view that this means that the speaker must refer the matter to the state assembly for debate and endorsement”.

Relating his previous experience, the Bukit Gelugor member of Parliament said he was faced with a similar action in 2004 after being accused of misleading Parliament by saying that members of Parliament must raise their right hand when taking their oath of office.

“The committee of privileges made a decision to suspend me for six months and this was brought before the House where it was debated and the decision was confirmed.” he said.

However, DAP national vice-chairman Chong Chieng Jien, who is also the MP for Bandar Kuching, pointed out that the speaker’s decision cannot be challenged in any court.

“There is no recourse. You can’t challenge it in court. Otherwise you will open the floodgates,” said Chong, who is also the state assemblyman for Kota Sentosa, Sarawak.

Chong, who is currently serving a seven months suspension from the Sarawak State Assembly, said: “If the Federal Court decide that they can hear the case, then everybody can bring their suspension cases to court”.

"I just give you an example. If the decision by the Dewan Rakyat Speaker can be challenged in the court, then almost every now and then there will be cases and the speaker will not have other things to do except going to court.

“There is no moral ground to claim this suspension as undemocratic. His decision is final, you can’t bring it to court,” he added.

Meanwhile, some DAP politicians have also expressed their disagreement with the move taken by Sivakumar.

“For me, this is more like a lawyer’s stunt or a political stunt. I’m worried this may backfire on us, particularly among the Malay voters,” said a DAP representative in Parliament.

His view was shared by a PKR representative who said: "You should talk about governing, not to come out with this kind of stunt. Let the court decide.

“Why need to do this again. If you have filed a lawsuit, let’s wait until the decision. Don’t need to do this,” he said.

Former Menteri Besar Datuk Seri Mohammad Nizar Jamaluddin has challenged in court the legality of the new Barisan Nasional government in Perak.

Gerakan Deputy President Datuk Chang Ko Youn, who also disagreed with the decision, said the best way to settle the issue was to let the court decide.

“In the meantime, everybody needs to remain calm and let the legal process take its course,” said Chang who is also the Perak Gerakan Chairman.

For Dewan Rakyat Deputy Speaker Datuk Wan Junaidi Tuanku Jaafar, Sivakumar had made a mistake by announcing the decision of the committee as he was supposed to keep it a secret until the assembly sat.

He was also of the view that Dr Zambry should not have attended the hearing as the composition of the committee members was now not correct following the change in the state government.

“It was five to one after March 8. But in 2009, its different. At least it should be four to two as the composition must reflect the number of representatives from the parties which now control the state assembly,” he said.

Therefore, Wan Junaidi said, the Perak Menteri Besar should not have appeared for the committee’s hearing as it would make the committee legitimate.[/quote]

[quote=“The Star”]KUALA LUMPUR: High Court Judicial Commissioner Mohamad Ariff Md Yusof will decide on Wednesday whether to disqualify himself from hearing the suit filed by former Perak Mentri Besar Datuk Seri Mohammad Nizar Jamaluddin.

Mohamad Ariff said he would need time to see if his decision would make the trial of the suit against present Mentri Besar Datuk Dr Zambry Abd Kadir a fairer one.

He said this in the presence of Nizars lead counsel Sulaiman Abdullah as well as senior federal counsel Datuk Kamaludin Md Said and Susana Atan.

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

Mohamad Ariff had in the previous proceedings said in open court that he was considering recusing himself because he was a former PAS member and former legal adviser and counsel for the party and PKR in a number of election petition cases.

He quit the party and his private practice when he was appointed a judicial commissioner late last year.

Kamaludin opened his submission by saying that it was the Attorney-Generals Chambers view that public perception would compromise the integrity of the suit.

There is a concern that in the public perception, you might not be impartial since you were a former PAS member, Kamaludin told the court, adding that it was important to maintain a state of public confidence in the judiciary.

It is only appropriate that your Lordship recuse yourself in the interest of justice. We also have to protect the image of judges as impartial. We are not disputing your ability to hear the case, he said.

Sulaiman countered by saying that when Mohamad Ariff was appointed a judicial commissioner, he took an oath to be fair in his decisions without bias towards any race, religion or manner of people.

Your oath demands that you discharge your duties faithfully without bias, he said.

Sulaiman also said it was important that Mohamad Ariff did not give up his right to hear the case.

It is imperative on your part to sit and hear the case because by not doing so it would undermine the judiciarys reputation as a fair and impartial institution, he said.[/quote]

[quote=“NST”]High Court Judicial Commissioner Mohamad Ariff Md Yusof has recused himself from hearing the judicial review filed by former Perak MB Datuk Seri Mohammad Nizar Jamaluddin.

Nizar is challenging the appointment of Datuk Dr Zambry Abdul Kadir as Menteri Besar and to seek a declaration that he is the legitimate Menteri Besar.

Mohamad Ariff said it is best to recuse himself adding that other judges are equally qualified to hear the case. He said that justice must be manifestly seen to be done.[/quote]