KUALA LUMPUR (July 24): The Negeri Sembilan Undangs or state chieftains have applied to recuse the High Court judge who is hearing the contempt of court case against them, alleging that there is a “real danger of bias” arising from her attendance at a state function with individuals said to be closely connected to the subject matter of the litigation.
In addition to the contempt proceeding scheduled to be heard on July 28, the application, sighted by The Edge via a file search, is also seeking an order for High Court judge Roz Mawar Rozain to withdraw from hearing the originating summons the Undangs had filed in May, and any further proceedings in the suit.
The Undangs are also seeking a stay of proceedings pending the final disposal of the recusal application and any ensuing appeal.
This comes after Roz Mawar had on July 9 granted leave to initiate contempt proceedings against the Undangs after concluding that a prima facie case has been established on the issue of whether their involvement in the appointment of a new Yang di-Pertuan Besar had violated a temporary injunction granted on June 5.
The finding of a prima facie case, however, is not necessarily a conclusion that the Undangs have indeed committed contempt, as that would have to be determined in the substantive hearing, Roz Mawar had said in her leave ruling.
The leave to initiate contempt proceedings was obtained by the Dewan Keadilan dan Undang Negeri Sembilan (DKU) and its secretary Raja Norazli Raja Nordin, on July 8, who claim that the actions of the plaintiffs constituted a violation of the ad-interim injunction order granted on June 5, and therefore constitute contempt.
The plaintiffs include three Undangs — Datuk Maarof Mat Rashid (Jelebu), Datuk Muhammed Abdullah (Johol) and Datuk Abd Rahim Yasin (Rembau) — as well as Datuk Mubarak Thahak (whose status as the Undang of Sungai Ujong is under dispute), Tunku Syed Razman Tunku Syed Idrus Al Qadri (Tengku Besar Tampin) and Datuk Seri Badarudin Abdul Khalid (Datuk Shahbandar Sungai Ujong).
In May, the six plaintiffs filed legal action against Raja Norazli and the DKU to compel them to produce the April 17 meeting minutes of the DKU that had led to the official removal of Mubarak as an Undang. The Negeri Sembilan government was also named as a respondent.
Recusal application filed on Thursday
In the recusal matter, according to the notice of application filed on July 23, the Undangs said they came across two Facebook posts around July 15 by users identified as “Casper Azrul” and “Che GuBard”, alleging that the judge had appeared in photographs taken at an event attended by parties linked to the underlying adat (customary law) dispute — while the case was still pending before her court.
There were many “comments calling on the judge to recuse herself from the proceedings” as stipulated in the postings.
The Undangs, led by Badaruddin who affirmed the affidavit in support of the recusal application, said they subsequently verified that the event was a Maal Hijrah celebration held on June 16, where the judge was seated beside the Tunku Ampuan Besar of Negeri Sembilan and at the same table as the wife of Menteri Besar Datuk Seri Aminuddin Harun, the wife of the state secretary and two state executive councillors.
According to the application, all of those individuals have close links to the subject matter of the originating summons.
The Undangs, via Messrs Deidra, Sharina & Co, contended that in the circumstances, “there exists a real danger of bias should High Court judge Roz Mawar Rozain continue to preside over the originating summons… this may be contrary to Sections 5, 6, 7 and 8 of the Judges’ Code of Ethics 2009” and that, “to ensure that justice is not only done but is also seen to be done”, the judge ought to recuse herself.
Decision went against them
Separately, the Undangs have also cited several case management decisions made by the court to justify their recusal application.
They alleged that the judge had insisted that the first and second defendants’ committal (contempt) leave applications be heard first “without first determining whether this Honourable Court has jurisdiction to hear the matter”.
They also alleged that although the only issue before the court at the leave stage was whether a prima facie case had been established, the first and second defendants “were allowed to make submissions touching on the merits of the application”, despite objections from the plaintiffs’ counsel.
According to the recusal application, the plaintiffs contended that the judge’s decision to allow those submissions “raises questions as to her impartiality”.
They also objected to the court fixing July 28 for the hearing of the committal proceedings against them, despite them informing the court that additional time was required to file reply affidavits because of the complexity of the issues.
The application stated that if the recusal bid is not decided before then, the committal proceedings would proceed while the allegation of bias remains unresolved, resulting in “irreparable prejudice”.
The plaintiffs further noted that the July 28 hearing date falls before the Negeri Sembilan state election on Aug 1.
They argued that the facts demonstrate both “a real danger of bias” and “a possibility that the plaintiffs will not receive justice at the conclusion of the hearing”, particularly in relation to the committal proceedings, which they described as quasi-criminal in nature.
The plaintiffs urged the court to hear the recusal application as a matter of urgency, and to stay all proceedings in the originating summons until the application is finally determined.
The injunction
With regards the originating summons to compel the DKU and Raja Norazli to compel them to produce the April 17 meeting minutes of the DKU meeting that had led to the official removal of Mubarak as an Undang, legal representatives of the DKU and Raja Norazli, who are defendants in this case, argued that the court had no jurisdiction to hear matters regarding the DKU and its decision, as it is considered non-justiciable.
Roz Mawar had rejected the plaintiffs’ bid for a stay of the April 17 DKU decision to remove Mubarak, pending determination over whether the DKU’s decision was justiciable or otherwise.
However, the Undangs and Mubarak then issued a declaration in May calling for the removal of incumbent ruler Tuanku Muhriz Tuanku Munawir and Raja Norazli as the DKU secretary.
On June 5, Roz Mawar imposed a temporary injunction order to preserve the status quo and barred them from holding any DKU meeting or function, amid the customary and constitutional crises in Negeri Sembilan.
The lawyers for the DKU and Raja Norazli have yet to reply on the recusal application.