Chairman of the three-man Court of Appeal bench Mohamed Zawawi Salleh said he would refer the recusal application to his superior, Zulkefli Ahmad Makinudin for a decision.
“Hopefully a new bench will be constituted by the Court of Appeal president (Zulkefli),” he said.
The appeal has now been fixed to be heard on March 27.
Empanelling of judges to hear civil and criminal cases in the Court of Appeal is done by the president.
This morning, the state government’s lead counsel Cyrus Das applied for the recusal of Zawawi and justice Kamardin Hashim from hearing the appeal as both have heard and decided on cases on a similar subject matter.
The other member of the bench was Vernon Ong Lam Kiat.
Das said they had written to the Court of Appeal to identify judges who could not sit to hear the state’s appeal.
“However, we will not know who is featuring on the bench until the day of the appeal,” he said.
Das, who was assisted by Ambiga Sreenvasan, said they were making the application primarily on grounds that Zawawi and Kamardin ran the risk of having predetermined the issues in the appeal.
Zawawi and Kamardin were on the bench that dismissed an appeal last year by two opposition MPs from Perak who were challenging the EC’s redelineation exercise.
Das said Zawawi had also chaired a Court of Appeal bench in 2015 that overturned the Kuching High Court’s decision to nullify a notice by the EC for the proposed redelineation exercise for Sarawak.
He said both judges had taken the position that the EC could not be stopped by the court from carrying its task before presenting its proposals to the prime minister.
“The concern of the state government must be given due regard. The perception of bias from the public point of view is important,” he said.
Government lawyer Alice Loke Ying Ching said the appellant had failed to satisfy the test on real danger of bias as laid down by the Federal Court.
On Dec 7, Justice Azizul Azmi Adnan, dismissed the state’s judicial review application to challenge the EC’s exercise in redrawing the electoral boundaries saying he was bound by a Court of Appeal ruling.
Court lifts obstacle on EC to start redelineation process in Selangor