By NH Chan
A thorough and critical consideration of the Federal Court’s inconsistent and dishonest approach to Rule 137 of the Rules of the Federal Court 1995 in 2 parts. This part considers the recent Federal Court decision dismissing Dato’ Seri Anwar Ibrahim’s application to review a previous Federal Court decision dismissing his application for disclosure of documents for his second sodomy trial.
Devastating and shocking news.
The headline of the online news portal Malaysiakini declared:
Anwar fails to get Federal Court to review its decision
Feb 25, 2010
The Federal Court has today decided not to review its Jan 29 decision barring Anwar Ibrahim from gaining more key evidence such as CCTV footage, medical reports, and witness statements from the prosecutors.
The three-member panel led by justice Zulkefli Ahmad Makinuddin made the unanimous decision that it has dismissed Anwar’s application for review.
“This is not a suitable case for review by another panel of the court. We should not relitigate[sic] the matter of one that has been decided,” said Zulkefli.
The other two Federal Court judges are Mohd Ghazali Mohd Yusoff and Heliliah Mohd Yusof. A review at the Federal Court is not an automatic right as an applicant has to satisfy that “there was an error in law” for the court to agree to a review, which is extremely rare.
Today’s decision may effectively deny the Federal Court the powers to review its own decision.
“Rule 137 (of the Rules of the Federal Court) does not confer jurisdiction on the Federal Court to review its own decision,” said the judges of the Federal Court.
The Star, Friday 26 February 2010 carried this headline:
Anwar’s bid for more evidence ends
Federal Court rules it has no power to review earlier decision
By Lisa Goh
KUALA LUMPUR: The Federal Court has ruled that it does not have the jurisdiction to review its Jan 29 decision denying Opposition Leader Datuk Seri Anwar Ibrahim access to documents he is seeking for his defence in his sodomy trial.
In a unanimous decision, Federal Court judges Justices Zulkefli Ahmad Makinudin, Mohd Ghazali Mohd Yusoff and Heliliah Mohd Yusof said: “Rule 137 (of the Rules of the Federal Court) does not confer jurisdiction on the Federal Court to review its own decision.”
“Even assuming that there is a limited inherent power, the applicant has failed to come within the limited exceptions that have been distilled from earlier decisions of the Federal Court,” said Justice Zulkefli in delivering the oral judgment yesterday.
Justice Zulkefli added that the issues raised by Anwar in the motion for review had been “duly considered and dealt with in the judgment of the Federal Court in this instant case.”
…
There must be finality. To re-litigate a case which has been heard and finally disposed of is not one of the circumstances as envisaged by Rule 137 of the Federal court,” he said.
The judges of the Federal Court fly in the face of Rule 137
Why not? Why can’t the earlier decision of the same Federal Court be reviewed?
Rule 137 of the Rules allows it. This is what it says:
137. Nothing in these rules shall be deemed to limit or affect the inherent powers of the Court to hear any application or to make any order as may be necessary to prevent injustice or to prevent an abuse of the process of the Court.
Aren’t the words, “Nothing in these rules shall be deemed to limit or affect the inherent powers of the Court … to prevent injustice or to prevent an abuse of the process of the Court” in Rule 137 clear enough? Those words clearly allow the Federal Court to review its own decision so as “to prevent injustice or to prevent an abuse of the process of the Court.”
We, the ordinary citizens of this country, are stunned by the ignorance of our judges of the highest court in the land for saying “Rule 137 (of the Rules of the Federal Court) does not confer jurisdiction on the Federal Court to review its own decisions.”
What utter nonsense are those ignoramuses talking about? These inane judges cannot even understand plain English when even a child can understand the plain meaning of these ordinary words. Now you can appreciate what I have been saying all the time that the ordinary people are better qualified than most of our judges when it comes to understanding the law. Since the common people are smarter than those judges, they can judge them. They would not be wrong if they think the judges are incompetent.
These three judges also say, “There must be finality. To re-litigate a case which has been heard and finally disposed of is not one of the circumstances as envisaged by Rule 137.” No one is asking for the case to be re-litigated. All that the aggrieved party, in this case Anwar Ibrahim, was asking is for the earlier judgment of the Federal Court declared null and void because it was an unjust decision. Unequivocally, the Federal Court has the inherent power to prevent an injustice whenever it had been occasioned by an earlier decision of the same court. This is clearly defined in Rule 137 where it says “Nothing in these rules shall be deemed to limit or affect the inherent powers of the Court … to prevent injustice.”
As if this atrocity is not enough, there is yet another horror to come out of those three judges. Only an incompetent lawyer or judge could say something as silly as this, “Even assuming that there is a limited inherent power, the applicant has failed to come within the limited exceptions that have been distilled from earlier decisions of the Federal Court,” said Federal Court Judge Zulkefli Ahmad Makinuddin.
But what “limited exceptions” can there be? The inherent powers of the court to prevent injustice or an abuse of the process of the court have no limitations nor are they affected by exceptions. The words in Rule 137 are so precise and clear that even a child could understand them. The Rule says that nothing is to limit or affect “the inherent powers of the [Federal] Court … to make any order as may be necessary to prevent injustice.”
Yet those three incompetent judges – perhaps they were clowns as their statements were laughable – still insist that the applicant, namely, Anwar Ibrahim, has failed to come within “the limited exceptions” when nowhere in Rule 137 are such preconditions imposed. The Rule allows for review by the Federal Court of its own decision if Anwar Ibrahim, the aggrieved party, can show that the earlier decision of the Federal Court was unjustly made against him.
The errant judges fail to understand that it is not the duty nor function of a judge to administer injustice.
A wrong decision based on an error of law is not the same as an unjust decision. Anwar Ibrahim is applying for a review because the decision of the Federal Court is unjust and not because it is wrong in law.
If you have been following the 5 Part LoyarBurok Interview of me, (it is also reproduced in the MalaysianInsider) you will find at the end of the interview, this statement where I said:
DOING JUSTICE is the only duty of a judge. INJUSTICE IS NEVER HIS DUTY. It is never the function of a judge to be unjust.
But then how do the judges know what is the right thing to do? This is how I answered the question in How to Judge the Judges, 2nd edition, pp 102, 103:
There are no two ways about this. When it comes to choosing between right and wrong; between justice and injustice, there is only one choice or nothing at all. To all right thinking people, lawyers and judges alike, right or wrong matters, justice or injustice does matter. … This is about doing justice according to law where there can be no place for injustice. Injustice is not an option here because the judges and the lawyers are all responsible to the community at large. They must seek to do their part “to see that the principles of the law are consonant with justice.” They must not fail in their endeavour to do justice for failure will forfeit the confidence of the people. As said by Lord Denning, “The law will fall into disrepute; and if that happens the stability of the country will be shaken.” To quote Professor Faruqi, we need “to advance justice and maintain its stability”. For “no one can calculate the aggregate amount of evil inflicted on the community” by a bad decision: John Lord Campbell, Lives of the Lord Chancellors (5th edn, 1868), Vol 2, p 381; Vol 4, p 254: Pannick’s Judges, p 63.
When it comes to truth and justice, there is never to be any choice at all because falsehood and injustice must never be the alternative. It has to be Hobson’s choice. So that for those who do not know right from wrong; who do not know justice from injustice, such lowly individuals should never be allowed to sit on the seat of Justice. They should never be allowed to be judges at all. And yet there are so many of them in the judiciary today ever since the rot begun.
I think I have said enough to prove my point.
If our judges say that there are “exceptions that have been distilled from earlier decisions of the Federal Court”, then they and those other judges of the Federal Court who have held that there are such exceptions are unfit to sit on the seat of Justice as judges. They are unfit to be judges because they do not know the difference between right and wrong; between justice and injustice and between truth and falsehood. Our country does not need impostors, who pose as judges, to deceive the common people any longer. The common citizenry can now uncover the impostors hiding beneath the mantle of the judicature.
The two misguided judgments on the “exceptions that have been distilled from earlier decisions of the Federal Court” on Rule 137
Having said that, I can now proceed to identify the errant “earlier decisions of the Federal Court” on Rule 137. There are two.
Mr. NH Chan (oops, I’m not sure how one should address a retired judge? Anyone can help, please?),
Thank you for all your thought-provoking and concise analyses of the cases and events. One cannot imagine the grievous lacuna in the public’s mind if not exposed to your exposition on the matter.
Martin Jalleh may have stirred the hornet’s nest by challenging the CJ to take action. I think the judiciary might just be gung-ho enough, seeing that fools rush where angels fail to tread.
I recall it is not unusual for judges to critique their brethren within and outside the austere chambers. I remember Denning was himself severely criticised in a number of cases, in not so complimentary terms. THey were all done in the name of professionalism or the lack of it. There was neither malice, spite or a hidden agenda. What outraged you has also outraged the nation. This is a rape and plunder that no judge with integrity – past or present, could sit idly by to watch in muted silence or stupefied lethargy.
The nation salutes you, sir, for your uncompromising stance and courage. History shall reverberate with the echoes of your contribution.
Sir, write on, please….for God’s sake and the sake of all Malaysians.
Martin is not stirring anything. If the CJ had wanted to take action he would have got the police themselves to lodge a report against him.
Mr Chan is like a law professor and these FC and COA judges are like students in a law kindergarten.
These “idiots”, “impostors” and “parishs” have to learn the English Language first and then read up their laws.
Any man/women of average intelligence will be able to differentiate between Mr Chan’s ‘wisdom of Solomon’ and the stupidity of those “impostor” parading as judges.
Come on, even the CJ himself is an ‘impostor’. He thinks the Judiciary is an UMNO Disciplinary Board.
In simple English, Rule 137 (of Federal Court Rules 1995) says – Federal court is never prevented from (1) hearing any application (from any side) or making any order to prevent “injustice” or (2) prevent abuse of court process.
This, to me, ought to be interpreted to simply mean that the Federal Court, in interest of justice, should hear and not deny any application made by any party purportedly based on “justice” unless the court is of the view that the application, made under rule 137 in the name of justice, is actually frivolous and not so really based on ‘justice”, and which actually constitutes the very abuse of court process that the second part of rule 137 seeks to prevent…
So the question is really whether it is “justice” within meaning of rule 137 for the Federal Court to review the lower courts’ denial of Anwar’s application for the Prosecutor’s CCTV footage, medical reports and witness statements from the prosecution.
That unfortunately depends on the meaning of what is “Justice”. [If one says that although it is difficult to describe in words, one has, however, an intuitive sense of it, this is getting nowhere as not everyone has an intuitive sense of (“nose” for) justice just like sense of humor and we can all dispense with a fool’s or a corrupt man’s sense of justice or humor (alike)! Is there an objective measurement then for what is “justice”?
For over 2000 years since Socrates, men far wiser than you and I have debated on this idea without philosophical conclusiveness or finality. We have laymen’s common sense justice, divine and natural justice, distributive, restorative, retributive justice – the whole works that an author like John Rawls can write a whole book (“Theory of Justice”) on.
Suffice for our purpose, we confine to “legal justice”. This too is hard to define (like most other “open ended” concepts) but a rough one is this : Justice – a state of affairs in which conduct or action or decision of a referee (Judges & Courts) to a dispute (in civil case) or a trial of the rights of an accused against the rights of the State/Prosecutor representing society (in criminal case) is both fair and right, seen by all and sundry as fair and right, given the circumstances of laws and rules being consistently and intelligently interpreted so as not to result by their interpretation in absurd and nonsensical, manifestly unfair or unjust consequences….defeating one’s sides rights under law or FRUSTRATING laws and their intents.
The Judiciary is a fake, as for the CJ, he is BN’s agent. What a sham judiciary Malaysia has.
Continuing from preceding post) : By this standard (legal Justice), Anwar’s application here is for the Prosecutor’s CCTV footage, medical reports and witness statements from the prosecution is based on section 51A. (1) of Criminal Procedure Code (“CPC”) that mandatorily requires that the Prosecution to make available to the accused a copy of any document (which by legal definition includes CCTV footage, medical reports and witness statements) before commencement of trial.
One has to ask what’s the purpose of section 51A. (1) of CPC? Is it to allow Prosecution to hide, as in a poker game, its aces so that in the trial – a game of contest of adversarial skills between Prosecutor’s team and Defence dream team – Prosecutor need not reveal its concealed weapon before the battle begins? If the answer to that is “yes” – and the meaning to legal justice is to give the Prosecutor the level playing field to blast the Defence with its concealed weaponry in the opening of the battle – then one can tell Anwar that he is not entitled to the items he asked for!
But I say thats not legal justice, and my reasons are these: It is deeply rooted in law that when it comes to a criminal case involving an individual’s liberty, every advantage should be given to him to acquit/defend himself. Why else do we have presumption of innocence until proven guilty? Why else people adopt criminal standard of Prosecutor proving “beyond reasonable doubt” before guilt is said proven? If it were just to level the playing field between Prosecutor and Defence in a ‘game of wits and contest’ to test each side’s lawyerly skills, we might as well not have such presumption of innocence and instead have everything based on balance of what is likely (50:50) than that of “beyond reasonable doubt” (75:25?)
For when it comes to a criminal charge and an accused’s liberty balanced against society’s right to contain/incarcerate him if he were guilty, its no more a question of judges’ leveling the playing fields between contestants to measure which side is better lawyers & got more weapons which need not be shown until day of battle! They have to show because of the overarching importance is the truth – whether this accused person actually committed the offence or is falsely accused?
How else can one explain section 51A. (1) of CPC providing in clear terms that Prosecutor should provide defence with “a written statement of facts favourable to the defence of the accused..”? This, a clear case to Prosecution (Accuser) of – show your concealed weapon (if you have)!
This simply means where courts below denied Anwar the benefit of section 51A. (1) of CPC (telling Prosecutor to strip and show its concealed weapon), it FRUSTRATES THE OBJECT of section 51A. (1) of CPC) and by virtue of that, it is contrary to public policy to allow a frustration of a law/rule like section 51A. (1) of CPC to continue unrectified…
This (correction of a frustration of law/rule) provides ample justification under the heading of “justice” – or legal justice as I interpret it within meaning of Rule 137 for Federal Court to invoke its inherent powers of review of Anwar’s application.
This an attempt to put in layman/readable terms something of what NH Chan is saying (with a lot of legal jargon).
these judges don’t understand English. They thought sodomy is soto-mee or mee soto. But since moolah had exchanged hands, need to become clowns to satisfy their master.
Well done, N H Chan!
For decades this country has a parody of a Federal government.
For decades things have deteriorated for the people and the culmination of all these is that today, we are lacking in:
1. Justice
2. Security
3. Clean water
4. Health care
Aren’t these the crux of what a government is all about? Without these, we, in effect don’t have a government!
What we have in abundance is the baloney of UMNO/BN and the so-called MSM!
It’s way, way past time that we, the electorate, dump this sort of Federal government and let the PR have a chance to revamp everything.
EVERYTHING!!
Its hard enough to run a good system. When you have a bad system AND bad judges – everyday injustice is being done. Its no longer about Anwar or politicians or the ‘big picture’ – everyday bad decisions are being made that let off criminals, steal properties from rightful owners, corrupt officials let go that affect the quality of our schools, health-care, roads, prices of goods, the jobs wand income we have and the business of small businessmen, abused/mistreated women and children.
Its not about the ‘big picture’ anymore. Its about you and me..
We owe it to Mr NH Chan tremendously, to enlighten us with his simple explanation on “How to judge a judge”
Thank you Sir!
I am able to identify now and not too much to my surprise, there are more Kangaroo Courts in this nation, stuffed with equally big number of Monkey Judges…what a shame brought to the Malaysia with once had the proud judiciary. Sadly now, has become the house of injustice…shame to the unprincipled and undignified UMNO scumbags!!
Is there no GOOD MALAY left in this country?
Tun Mahathir, WHAT SAY YOU?
Why blame judges when one’s not happy with their verdicts, one has to ask who ultimately appoints all. The chain goes this way. CJ appoints judges (with PM’s approval). CJ appoints wrongly – then who appoints him? The PM. PM wrongly appoints him, who appoints PM? Party delegates. If Party delegates appoint wrongly, who gets them appointed by votes of them and their parties? The People – or the majority as so delineated by electoral boundaries. So ultimately the blame comes to us the people. We deserve the government and judges we get.
For laws themselves don’t operate in a vacuum. They are influenced changing or prevailing norms and values of the people or majority….
Even the idea and interpretation of what is “legal” or “just” is a moral and socially defined term that changes with time, culture, etc
So if there’s resurgence of “Ketuanan”, thanks to strident advocacy of certain groups opening chapters all over the country and enlisting more and more adherents, they may well influence the majority on its values and since what is “legal” or “just” is a moral and socially defined term, there could become such a thing as “Ketuanan Justice”.
In talking about “common sense justice, divine and natural justice, distributive, restorative, retributive justice” – and “legal justice” – I have forgotten this new species of “Ketuanan Justice” evolving. Already we are there: under laws governing parks, it is against the laws for couples whether Muslim or non Muslims to show physical intimacy that has been construed as extending to holding hands or placing hand on lap of opposite sex. So it’s the way of interpretation: the spitting out of remnants of manna in Holy Communion, photographing it by two reporters of the Al-Islam magazine is not “intentional” to activate Section 298A (1) of the Penal Code; there’s no intention to commit sacrilege when the cow head used in protest is merely make political point that Selangor state government is “stupid” since the cow is stupid; oral sex with opposite sex is somewhat less in degree an unnatural sex in 377B than sodomy with same sex; the judge Dato Lau Bee Lan, maybe its good that she be transferred to Commercial Section because what the justice she metes out by her verdict is that of secular western justice – not Ketuanan Justice, and so on…
By the way an argument may be made under Ketuanan Justice why Anwar should not be given CCTV footage, medical reports and witness statements. It is because his alleged offence – sodomy, albeit consensual – is very very unnatural and offensive to the order of Nature by norms of Ketuanan Justice, especially so he leads a coalition under banner of inclusive politics and social justice that is opposed to precepts of Ketuanan Justice.
These are some good arguments that advocates of Ketuanan can use – to explain with justifications some of the going ons today….
On a very diametrically opposite note to Ketuanan Justice/Values, I shall ask no more that that you reflect on some quotes from a great American judge – justice Learned Hand -in the next post.
Justice Learned hand’s Quotes:
1. On Liberty:
“What do we mean when we say that first of all we seek liberty? I often wonder whether we do not rest our hopes too much upon constitutions, upon laws and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it…”
“What then is the spirit of liberty that must lie in the hearts of men and women? It is not the ruthless, the unbridled will…I cannot define it; I can only tell you my own faith. The spirit of liberty is the spirit which is not too sure that it is right; the spirit of liberty is the spirit which seeks to understand the minds of other men and women; the spirit of liberty is the spirit which weighs their interests alongside its own without bias; the spirit of liberty remembers that not even a sparrow falls to earth unheeded; the spirit of liberty is the spirit of Him who, near two thousand years ago, taught mankind that lesson it has never learned, but has never quite forgotten; that there may be a kingdom where the least shall be heard and considered side by side with the greatest.”
2. On a community in decline :
“That community is already in the process of dissolution where each man begins to eye his neighbor as a possible enemy, where nonconformity with the accepted creed, political as well as religious, is a mark of disaffection; where denunciation, without specification or backing, takes the place of evidence; where orthodoxy chokes freedom of dissent; where faith in the eventual supremacy of reason has become so timid that we dare not enter our convictions in the open lists, to win or lose.”
In the recent decisons, it was the same judges that sat and decided.
The majority of judges that sat are always the “same usual suspects” while the others are also members of the same club who are there to just follow the majority’s decision, to make it 3-0 or 5-0 as only one judgement will be delivered. Who dares to go against the “bosses”?
I am told the “usual suspects” readily volunteer to hear the cases. They are ever ready and are on call.
Has our justice system gone so low that perhaps we should all clamour for appeals to the Privy Council. Just “California dreaming, on a winter’s day”.
Jeffrey, of course we have to blame the judges. They are supposed to be learned people who are suppose to have the ability to interpret the laws correctly. That is their job, that is what they are paid to do.
To say that we are to blame those responsible for appointing them is tantamount to saying that if your son murdered someone, one should blame you, the father for bringing your son into this world.
Does Bolehland’s law (of the jungle) give the accused the right of discovery ? Has there been any case under Commonwealth law where the accused is denied the right to review the evidence of the prosecution prior to trial ?
As Justice N H Chan correctly pointed out, the only way to change the current disgraceful judiciary state of affairs in this country is to change the government. No doubt, the people voted BN in but even then this is not exactly true, more people actually voted for the opposition but because of the gerrymander BN was able to remain in power even they had less votes. The judges at the front level dispensing justice must be held responsible and accountable for the actions. Perhaps it is wishful thinking that the people who appointed them would take notice of their bad performance and remove them. If enough pressure is applied something has to give.
There arent that many judges that I admire.
The late Tun Suffian was one.
Current Federal Court Judge The Hon. Gopal Sri Ram is another.
Now I add NH Chan to the list.
Bravo, Sir. You champion what is rightfully an institution that was honourable & fair.
An excellent piece by NH Chan,
It CLEARLY shows there is a harrowing injustice going on in M’sian courts.
From a layman point of view… rule 137 means “Nothing should prevent justice from being exercised. NOTHING at all. Period.” The key here is JUSTICE.
Buttt….. in M’sian courts…. hmmm….
rule 137 means “I AM UMNO & I CAN CALL ANYTHING JUSTICE!”.
rule 137 also means “I AM UMNO & I CAN CALL ANYTHING INJUSTICE!”.
rule 137 also means “I CAN STEAL A FEW BILLIONS & STILL CALL IT JUSTICE”
rule 137 also means “YOU MAY HAVE WORKED HARD & EARNED AN HONEST LIVING ALL YOUR LIFE.. BUT I CAN TAKE AWAY ALL YOU’VE WORKED FOR & CALL THAT JUSTICE”
rule 137 also means “I CAN CALL YOUR CRY OF INJUSTICE AN INJUSTICE ITSELF”
rule 137 also means “I CAN CALL ANYTHING JUSTICE AS LONG AS IT KEEPS THE RAKYAT’S BILLIONS IN MY BANK”
rule 137 also means “I CAN SCREW ANYONE & STILL CALL IT JUSTICE”
&
rule 137 also means “SO WHAT?”
I did not agree with the writer saying that the judges did not understand English which they do.
Its simply all those judges have been scare shit of their rice bowls that they have to betray their concient to have done what they have have done.
I really concern about theses judges that have abused the power that has bestow to them to dispense justice but they did other wise.
The consequences is very grave when they depart from the earthly world as there is life after this life. To put it simply to my belief those being that have abused their power such the judges mentioned by the writer be sentenced to eternally hell which will take millions years to redeemed themselves. That is horrific so to say. I have read books that tell these story and it was not just joke.
Let pray for the well beings of these judges may they regain their faith before they depart which is for sure.
Honest and good judges are hard to come by these days, what’s more with interference by BN/UMNO! Our judiciary is falling apart!
If they are not honest and good judges than in the first place,they became judge because of their shin’s colour and were specifically head hunted by agent lingam. Don’t you think is correct ?. Now ktteokt you need not wonder why any judgement against the opposition is always pleasing to Umno/Bn.
Let me put the matter in a more layman term for the benefit of those who are not legally trained. Do bear in mind that what I have to say is not a complete statement on the issue. It is only a brief explanation.
There is a great difference between criminal actions and civil actions. The latter is about two individuals. They stand on equal ground. And so the outward appearance to the world is, they are engaged in a level tussle in court.
Criminal actions are actions by the state (i.e. country) against an individual, the accused. Here, there is no appearance of equalness, no matter what.
This important difference is fully recognised by lawmakers and judges and a very significant legal rule has been put in place to address it.
In civil actions, because of equalness, the claiming party need only to prove his claim on balance of probability. This is like tipping the scale. A little extra load on one side would be enough to do the work.
In criminal actions, the state must prove the accusation beyond all reasonable doubts. This will demand more than a mere scale tipping. After all, the convicted wrongdoer would in consequence be stigmatised socially with the label “criminal” and he could well face punishment by the state in the form of fine or incarceration or suffer the pain of the rotan and in extreme cases (but not so in malaysia and a handful of other countries) he could even face death.
These consequence are severe and grave. Therefore elaborate rules and procedures were imposed to avoid or at least to minimise mistakes in criminal trials.
It is therefore crucial to let an accused know exactly what he is being accused of so that he is able to answer the accusation properly. He needs evidence to defend himself. So needless to say, he has to have access to all necessary evidence in order to prepare his defence.
And this includes evidence which are in the hands of the police. This is precisely where the police is bent on not helping anwar.
Hats off to My Lord, NH Chan!