Last Friday, former sessions court judge Zunaidah Mohd Idris was produced in the Raub sessions court where she had sat as presiding judge from 2004 to 2005 and charged with falsifying a document written by magistrate Nurul Mardhiah Redza in relation to a drug case in the magistrate’s court.
Zunaidah, 48, pleaded not guilty to committing the offence in her chambers on Sept. 14, 2005.
If convicted, Zunaidah can be sentenced to seven years’ jail and fined. She was released on RM2,000 bail and the hearing fixed for July 8.
Without getting into the merits of the charge, the prosecution handling of the case has raised questions.
Firstly, deputy public prosecutor Mohamad Hanafiah Zakaria told the court the prosecution would be conducted by prosecution division head of the Attorney-General’s Chambers Datuk Mohd Yusof Zainal Abiden.
This has raised eyebrows and question why the head of the Attorney-General’s Chambers is conducting the prosecution of this comparatively minor case when neither he nor the Attorney-General is conducting the prosecution in the high-profile Mongolian Altantunya Shariibuu murder trial with its far reaching political and good governance implications.
Zunaidah was the sessions court judge in Klang on Nov. 26, 2007 who granted a discharge not amounting to an acquittal to three Hindraf leaders P. Uthayakumar, P. Waytha Moorthy and V. Ganapathi Rao who had faced sedition charges.
After her decision, Zunaidah was taken off the Klang Sessions Court and transferred to the Attorney-General’s Chambers in Putrajaya and assigned to administrative duties.
Was Zunaidah’s charge for falsifying a document going back to September 2005 in any way related to her decision to reject the prosecution case in setting the three Hindraf leaders free at the Klang Sessions Court on charges of sedition, by granting a discharge not amounting to an acquittal?
It’s high time for a cleansing in the AG’s dept as well after the judiciary.
Selective prosecution is nothing new. Time to change.
http://pakatanrakyat-perak.blogspot.com
First, it was the judiciary.
Now, we must ask this pointed question: can AG’s chambers be expected to do what is fair and honest, transparent and clean, conscientious and credible? Based on its track record since Tun M’s premiership – just ask yourself? You don’t need my input for your answer!
Pakatan Rakyat must go to the full lengths to cleanse the entire government machinery. Huge task, certainly but if and when PR takes over, there will be a fresh dawn for Malaysia.
Till then, Malaysians must keep their hopes high.
From what you insinuate, not only the judicial institution but also the entire administration of justice system must be called to scrutiny. Good you raise the issue.
Although AG department has discretion to prosecute, it cannot generally having regard to equal protection constitutional safeguard under article 8, exercise prosecutorial discretion on improper grounds dictated by race or religion or even political creed or considerations. [Article 8 of Federal constitution – All persons are equal before the law and entitled to the equal protection of the law].
Arguably, the Constitution prohibits the government from pursuing criminal charges even though the accused (Zunaidah Mohd Idris) may have actually committed an offence of falsifying a document written by magistrate Nurul Mardhiah Redza in relation to a drug case in the magistrate’s court.
Here there must be evidence of improper motives – not just suspicions of improper motives…..
If I am not mistaken there have been occasions when session judges had been transferred after making decisions unfavourable to the prosecution.
The problem is, in our unique Judicial hierarchy, the AG is superior to the session judge.
Now it takes guts to acquit one whom the AG believes should be charged.
Lawan taukeh, they say.
There was this judge (Hamdan Indah, I think) who acquitted Azmin Ali. There was another who allowed Anwar Ibrahim to make a statement pertaining to his beating by the then IGP.
Those in the judiciary will be know more.
2nd last para of last post should read “….Arguably, where there is evidence of improper motives, the Constitution prohibits….”
The suspicions are based on:
1. Zunaidah of Klang Session Court ordered the discharge of Hindraf’s leaders P. Uthayakumar, his brother P. Waytha Moothy and V. Ganabatirau on technicalities that the prosecution had failed to submit the original Tamil transcript of the alleged seditious remarks allegedly made by them; (It was not a decision the powers-that-be were happy about);
2. AG immediately asked for the notes of proceedings leading to judge Zunaidah Mohd Idris discharging the trio but that might be explained by prosecution’s application to reverse Zunaidah’s decision before the High Court;
3. prosecution division head of the Attorney-General’s Chambers conducting prosecution of Zunaidah raising “eyebrows why the head of the Attorney-General’s Chambers is conducting the prosecution of this comparatively minor case when neither he nor the Attorney-General is conducting the prosecution in the high-profile Mongolian Altantunya Shariibuu murder trial with its far reaching political and good governance implications”;
4. After her decision, “Zunaidah was taken off the Klang Sessions Court and transferred to the Attorney-General’s Chambers in Putrajaya and assigned to administrative duties”.
Look at 4. That is the lynchpin of the whole issue.
Zunaidah was government employee (not easily sacked under general Orders) but what if she were working in private sector, would her transfer from sessions court judge to administrative duties in Putrajaya be normally considered a punishment tantamount to “constructive dismissal”???
In a constructive dismissal, in broad terms ,one of the main test is:-
Whether the transfer to administrative duties in Putrajaya is “cold storage” being so fundamental change that would in parallel circumstances in private sector constitute a breach of contract on the part of her government employer which breach is sufficiently important to justify Zunaida as employee to have immediately resigned from employ of her employer without having to pay it compensation and instead be entitled to claim from compensation from the employer on grounds of constructive dismissal without lawful justification?
If looking at and operating within the 4 corners of her written contract with govt employer, the answer to the above question is in the affirmative, then she would have established objectively some reasonable basis that her employer, the government had commited “constructive dismissal” and acted in bad faith in that particular transfer to administrative duties – and since the AG/Prosecution Department is also under the same govt employer, a reasonable suspicion of improper motives (ie as in being likely directed to prosecute as part of the overall attitude of the govt employer to punish this “errant” employee….
As I earlier said, generally once some reasonable suspicion is established that exercise of prosecution discretion might have been tainted by some extraneous and improper motives, it cannot be allowed to proceed – independent, separate and regardless of the question whether Zunaidah had actually falsified a document written by magistrate Nurul Mardhiah Redza in relation to a drug case in the magistrate’s court as accused or otherwise!
In Malaysia, is there any organization under the control of the BN Federal Government and any people appointed and controlled by the Federal Government that we can trust and expect fair play?
Judges? IGP? AG? ACA? Police? Various KSUs?
Why are they serving without conscience the Federal Government elected by <50% of voters from the Peninsular Malaysia?
Four PKR leaders, party president Dr Wan Azizah Wan Ismail, vice-president Tan Sri Khalid Ibrahim, who is also Selangor Menteri Besar and chairman of the privately-owned Sultan Sulaiman Club, his personal assistant Yahya Shari and rally organising chairman Azmin Ali, had been asked by the police to report to the Dang Wangi police station at 3 pm today to help with police investigations! Our police is so cekap! Why?
Perhaps it’s time to replace the Federal Government before it locks up many elected MPs and state assembly people, as well as fair minded people, under ISA. Another Operation Lallang.
It does not make sense to me that a Sessions Court judge is subordinate to the AG. How can we expect them to act without fear or favour when they have to rule against the prosecution which is under the AG?
Isn’t the AG part of the Executive and the judges part of the Judiciary? I am confused.
this is preposterous. why victimised her when she is just trying to do her job. if the AG office is not in agreement with her decision, then there is an avenue to appeal.
let the AG office be reminded that justice is not only done but seen to be done. The people has spoken loudly that they no longer tolerate such dastardly act of victimisation which is the hallmark of mahatir’s ways of dealing with those who are not in agreement.
I hope that when PR form the next government a royal commission on the judiciary is set up for a comprehensive investigation which must including the AG for any misdeed he’s committed. There are too many events that doesn’t jell as far as the AG is concerned.
Kangaroo see kangaroo do.
Need I say what type of court we have?
Cinapek, sessions court judges like magistrates below them are all members of Judicial and Legal Service, the head of which is the Attorney General. In his other role, the Attorney General is empowered under Article 145 of the Federal Constitution to institute, conduct or discontinue at his discretion based on evidence investigated and presented by police/ACA any criminal prosecution against any persons including the Prime Minister. It is a very powerful position.
Interesting,I thought I’ve heard her name somewhere before.If the HINDRAF lawyer ever get out,they should some how,some what defend her.
Selective prosecution, selective persecution. This is the system left behind by Mahathir and perpetuated by Sleepy Head. The only way to change this sad state of affairs is to get all of them out of power. No chance of voluntary changes from within.
And now Mahathir has selective memory. It is sad that the system is so rotten to the core, and there is no way to change it except for a total change of the federal government.
Yet we have DAP supporters here who would rather that the BN continue to rule (or misrule) even if Pakatan were to be given a chance to change the federal system.
“Selective prosecution, selective persecution” Godfather
Prosecution (or in some cases, prosecutorial abuse) is different from persecution. I don’t think you could ‘selectively’ persecute someone – anyone, any group etc. The two can overlap – yes.
Those who are suffering from persecution may want to read this:
http://www.nao.org.uk/publications/nao_reports/03-04/0304535es.pdf
Those converts to Islam who are being persecuted (because of their attempts to re-convert to their original religion) could get working papers upon arrival, authorizing them to stay and work and finally get citizenship in countries who are signatories to the United Nation Convention concerning refugees and the 1967 Protocol.
So those who want to leave Malaysia desperately for greener pastures in foreign lands and do not want to have to apply for a visa, may want to convert to Islam today, and then surrender themselves to the Islamic Religious Department the next day and ask to be detained at one of those Rehabilitation Centers. In that case you better hope they will not send you to some mental institution – because that would not qualify you but instead would disqualify you for life from ever getting any form of visa to anywhere!
Some DAP members may want the federal government to persecute them for their political activities and take the same route. This is not advisable as the experience of one DAP member not too long ago indicates. He tried and failed. Those who contemplate on taking the same route may want to do some research as to what ‘persecution’ means.
Jeffrey,
AG can prosecute the PM and the PM appoint the AG.
So who is more powerful ?
The one who take action first.
Dear Uncle Kit,
Off topic a little.
Please try to push for the release of Uthayakumar’s release. His life may be at stake.
Or at least push for him to get proper medication.
Thanks.
rainmankl, its the other way around, yes, the PM appoints the AG and yet AG can prosecute the PM because in theory no one is supposedly above the law (though in reality, of course you’re right PM more powerful, and it is not gpoing to happen in ordinary course of events unless there is clear convincing and irrefutable evidence of PM’s commission of offence that canmnot be buried by the weight of his authority and force of his power. I hope that clarifies.
RM2,000 bail? Goodness gracious me!
“…it is not gpoing to happen in ordinary course of events unless there is clear convincing and irrefutable evidence of PM’s commission of offence that canmnot be buried by the weight of his authority and force of his power. ” Jeffrey QC
I don’t have a problem with the “ordinary course of events” but I have a problem with the “clear and convincing and irrefutable evidence”. Why? Because for you, for example, to be charged for a crime alleged to have been committed there need only be a “prima facie” evidence of the alleged commission of the crime. Your “clear and convincing and irrefutable evidence suggests a higher standard.
In jurisdictions where the rule of law is observed strictly, it matters not who commits the crime.
In Malaysia, the sultans and the Agong were at one time immune from prosecution. Today they are not. If the DAP EXCO member were to hit the Regent of Perak on the head with a golf stick for refusing to accept the nomination of his party for MB, he would face criminal prosecution. The reverse today is also true.
The attorney-General has a very tainted past in view of his role in the conviction of Annuar. For that he was rewarded with the present position.Thism an has no qualms in convicting his own mother. There is no doubt that the prosecution of Zunaudah is related to her role in the release of the Hindraf demonstrators.
My “clear and convincing and irrefutable evidence” is not intended to mean a higher standard by way of application of law by which all whether mighty or nobody is subject.
My “clear and convincing and irrefutable evidence” is intended as condition precedent to resist the ordinary course of events where the authority and influence of the Mighty, who is guilty, could stymie and bury the will to prosecute in spite of presence of sufficient evidence by normal standard but which a higher standard would be able to galvanise public pressure such prosecution, which cannot back off even in the face of political pressure not to prosecute.
First thing to do when Pakatan wrests control of the federal government is to give Gani Patail a pension. This guy has such a long roll call of shame – from the Anwar frame-up to the latest pronouncement that the Trengganu sultan’s actions were unconstitutional.
We have to stick the words “shame” and “remorse” into these people’s heads.
The role of AG/Public prosecutor is to prosecute on behalf of the state if police investigations evince sufficient evidence to make a prima facie case. It does not preempt the questions of innocence or guilt of person charged/accused.
AG does not have to address that issue. Just like defence lawyer, he does not strictly have to address whether he is convinced of the accused’s innocence and guilt. His duty is to present his client’s case in the best light within framework of law and facts.
It is how the adversarial system works. Generally it is for the court (or jury where this institution exists) hearing the accuser and the defender to determine on law and overall balance of facts/evidence whether conviction is sustainable on the “beyond reasonable doubt” standard.
This is what we learn from trials we see in movies isn’t it??
I would agree that if there were evidence of political pressure on him to prosecute based on extraneous factors of race, religion or political affiliation etc then even if investigation reveals a prima facie case, for which he would only be discharging his duty to prosecute, he should not proceed because extraneous factors should not have decisive bearing on his prosecutorial discretion.
In an opposite scenario that if investigation reveals a prima facie case for which duty requires him to prosecute but he does not prosecute because of political pressure not to do so, then his omission influenced by extraneous considerations will be a dereliction of public and constitutional duty.
Why the Seberang Perai Municipal Coucil is almost broke
http://anilnetto.com/2008/04/14/the-hanging-flowerpots-of-butterworth/
And who decides if there is dereliction of public and constitutional duty if such dereliction was at the behest of his political masters ?
If you guys know the past history of our AG do you guys think he can do his job without fear or favour.Its like asking the wolf to look after the sheep..
It seems the top institutions in our country have wrong priorities always. This is not the first and last. How about the police going after PKR leaders for the recent illegal assembly even after they were duly informed. The strong opposition this time around needs to get into this as well.
On another note, I wish to share this. It is good to see all DAP YBs have their own blogs. But what I find missing in many blogs are the regular updates. Irregular updates will reflect badly on the leaders concern for poor management of information flow. Hope YB Lim would advise those who are not regulars.
Though we cant prove their the AG’s actual intention, it is very obvious of their mala fide approach. In this regards the attempt to reform judiciary must be supported at all cost. It is only way Malaysians could get their rights upheld.
Now that BN has lost big, all its cronies of this leaders are jumping of the ship like rats.This people who at one time will rush and push their way in front just to open the car doors of the MBs, are now coming forward to bad mouth this leaders.Its just made sick..
good idea
Evidence of selective prosecution, of prosecutorial abuse and interference in due process has been on the rise in Malaysia for many years now. I suspect it is never going to go away even if PR were to take over the federal government tomorrow. I am not naïve as to think that they will just go away with a change in government.
Shimon Peres
“If a problem has no solution, it may not be a problem, but a fact – not to be solved, but to be coped with over time.”
So, all session court judges had to bow to AG lah!
Is that poor judge getting any help?
Reading the background of the case, can anyone refute the notion it is linked to her actions in defending the rule of law rather than being subservient to the political masters.
This is one of many of glaring examples of interference in judiciary by the executive.
But Mahathir and Abdullah administration have perpetually denied.
I was just wondering what the honourable judge Zunbaidah has to gain by “falsifying” the document ?????
Or is this a frame-up to muzzle a “brave and bold” member of the judiciary.