KUALA LUMPUR (July 27): The Negeri Sembilan Undangs or state chieftains are appealing against a High Court ruling earlier this month that is asking them to answer the contempt allegations scheduled for Tuesday (July 28).
Six plaintiffs, which 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), had been found to have a prima facie case for contempt against them on July 8.
On July 21, the Undangs filed their notice of appeal through their solicitors, Messrs Deidra Sharina & Co, where in documents sighted by The Edge, they stated that they are appealing judge Roz Mawar Rozain’s decision for them to answer the committal (contempt) proceedings to the Court of Appeal.
Besides this, last Friday (July 24), it was also reported that they had also filed an application to recuse Roz Mawar from hearing the committal, and to also recuse herself from their suit where they as plaintiffs want a court order for the Dewan Keadilan and Undang’s (DKU) minutes on April 17, which led to Mubarak’s expulsion, to be produced.
On July 24, the Undangs, via their solicitors, had 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.
This follows pictures of the judge attending a Maal Hijrah celebration last month having been posted on social media, in which the judge was seated beside the Tunku Ampuan Besar of Negeri Sembilan and was sat at the same table as the wife of Menteri Besar Datuk Seri Aminuddin Harun, the wife of the state secretary, and two state executive councilors last month.
The Undangs had removed the Yang di-Pertuan Besar Tuanku Muhriz Tuanku Munawir on April 19, a move which was disputed by Aminuddin and Prime Minister Datuk Seri Anwar Ibrahim.
They had also allegedly defied a court injunction to install or proclaim Tunku Datuk Seri Nazaruddin Tuanku Jaafar as the new Yang di-Pertuan Besar of Negeri Sembilan on June 5, resulting in the DKU and its secretary Raja Norazli Raja Nordin seeking leave to initiate committal proceedings, which was granted by Roz Mawar.
DKU and Raja Norazli oppose stay
Lawyers for the Undangs claim that they had no instructions to receive the committal papers on behalf of their clients, which the DKU and Raja Norazli’s lawyers had tried to personally serve on them.
In affidavit court papers sighted by The Edge, Raja Norazli and the DKU are opposing the application for a stay of the committal proceedings against the Undangs, following claims that the cause papers for committal have not been served on the Undangs or the Undangs’ solicitors claiming that they have no instructions to accept them.
In an affidavit dated Thursday, Raja Norazli claims that two despatchers from their solicitors had tried to enforce personal service or substituted service of the committal papers since July 13, as instructed by the court, but failed.
The DKU and Raja Norazli’s lawyers, who had opposed the plaintiffs’ application ordering them to produce the DKU minutes and rescind Mubarak’s expulsion, citing that the court does not have jurisdiction to hear their application as the matter is non-justiciable, also referred to two earlier affidavits by the despatchers sent by Raja Norazli’s solicitors Messrs Halim & Ismail — swearing that the service had been refused by the plaintiffs’ lawyers — which Raja Norazli believes to be true and correct, and has adopted into his own affidavit.
He added that on July 22, he received the notice of appeal from the Undangs’ lawyers against Roz Mawar’s decision.
“I respectfully aver that it is telling that the plaintiffs were able to give instructions to their solicitors to file the July 21 Notices of Appeal, yet failed to attend or make themselves available to accept personal service at their respective premises at the attempted service on July 14 and July 17, and at the confirmed appointments on July 22.”
The DKU secretary claims that in view of plaintiffs filing the notices, he believes that the Undangs were at all times fully aware of these proceedings, were actively participating in them, and were able to instruct their solicitors whenever they chose to do so.
“In light of the above, I verily believe that their position, namely their solicitors had no instructions to accept service of the committal papers on their behalf and that personal service must instead be effected on each of them, was plainly an afterthought and an attempt to delay or avoid service. This is especially so as no such position was raised during the hearing on July 8.
“I am advised by my solicitors and verily believe that the filing of the notices does not operate as a stay of proceedings. The DKU and myself as the first and second defendants remain ready to proceed with the hearing fixed on July 28 (tomorrow).”
Raja Norazli said the committal application was made under Order 52 Rule 4(4) and/or Order 62 Rule 5 of the Rules of Court 2012 invoking the inherent jurisdiction of the court.
He added that the basis of the application is that the personal service of the committal papers on the Undangs had been rendered impracticable by their own deliberate evasion and non-cooperation of service, despite attempts made on July 14, 17, and 22, and hence “it is just in the circumstances for the orders sought to be granted”.
He said the purpose of personal service — to bring the committal papers and the committal proceedings to the plaintiffs’ attention — has in substance been achieved.
“In view of the hearing fixed [for] July 28, I respectfully pray that the (committal) application be heard urgently, before or on July 28 (tomorrow),” Raja Norazli said.
A case management is being held on Monday (July 27) before senior assistant registrar Farah Nabihah Mohamad Dan.
With this latest development and notice of appeal over the contempt application filed and the Undangs’ application to recuse Roz Mawar and for a stay, it remains uncertain whether the much anticipated Tuesday proceedings will occur.