By Martin Jalleh
14 Oct 2011
When the respected retired judge N H Chan called certain judges in the appellate courts “imposters”, “intellectual and legal frauds”, “incompetent”, “inane”, “ignoramuses”, “inconsistent” and even an “idiotic” bunch, little did he realise that he was being very mild.
Now it has come to the public’s notice that crouching amongst the growing company of judicial clowns and court jesters in the Palace of Justice is a copycat judge who allegedly plagiarised chunks of a judgment of another judge – in a copyright infringement case!
Former Law Minister Rais Yatim has confirmed that the government had known about the plagiarising judge, but Rais tries to take the rakyat for a ride by blaming it all on the then Chief Justice (CJ), and that it was left to the latter to investigate and to take appropriate action.
Copycat out of the bag
Recently, veteran lawyer Karpal Singh, with the support of close to 60 Pakatan Rakyat MPs, submitted a motion to the office of the Parliament speaker against Justice Abdul Malik Ishak, to have him placed before a tribunal and be removed.
While serving as a High Court judge in Johor in early 2000 Abdul Malik had allegedly committed the offence of plagiarising a judgment by then Singapore High Court judge GP Selvam and the irony of the matter was that Malik was hearing a case regarding copyright infringement.
Malaysiakini highlighted two news reports in Singapore’s Straits Times — 8 March and 13 April, 2000 which were referred to by Karpal Singh. The newspaper quoted then CJ Eusoff Chin as having written to his Singapore counterpart, Justice Yong Pung How, asking for more information on the allegation of plagiarism.
A month later, Eusoff told journalists that the matter was resolved and that it had arisen out of a “misunderstanding”. He however did not elaborate. (By the way, this is the same CJ, whom a former CJ Mohamed Dzaiddin Abdullah had described as one who “kept lying to him” when the latter was a Federal Court judge and Eusoff was his boss! (Star, 30 Jan. 2008).
The Straits Times also reported that Rais Yatim had promised an investigation. Rais was ridiculous enough as to add that it was not easy to establish plagiarism because it was normal for judges to quote one another extensively and that: “Quoting another judge is not plagiarism.”
The Straits Times report of 8 March, 2000 reduced Rais’ “rescue bid” of the judge to pure rubbish when it quoted the former Singapore judge (Selvam) accusing the Malaysian judge of having obtained a copy of his (Selvam’s) judgment through a lawyer and “having copied chunks from me without acknowledging”. (Rais sat on the case for four long years and did nothing about it!)
Selvam was also quoted to have said the Malaysian judge backdated his judgment so that people “will think I copied from him!” The naked truth appears each time Rais speaks through his rear end.
After the Singapore judiciary got the cat out of the bag, the copycat was transferred out of Johor Baru and kept in cold-storage for a while. Seven years later the plagiariser would be promoted to the Court of Appeal (16 July, 2007)! This can only happen in Bolehland!
Karpal Singh has described (on several online news portals) Malik’s alleged plagiarising as a “judicial scandal”, “misconduct of a very serious nature”, “a source of embarrassment for our judiciary” and one that warrants “stern disciplinary action” by a Royal Tribunal.
Will Justice Abdul Malik Ishak have enough honour left to resign on his own accord? Is there any remaining sense of decency and self-respect in him to acknowledge and accept the fact that his position as a judge has become clearly untenable?
Will the Chief Justice save the judiciary and the country from further embarrassment or has the judiciary entirely lost its sense of shame and the CJ prefers to continue in his elegant silence?
Meanwhile, taking the easy way out like Rais, Minister in the PM’s Department Nazri Abdul Aziz said the government could not take action against Abdul Malik as it was a matter for the current judiciary to settle.
Asked why the judiciary had not censured Abdul Malik until now, he said: “I don’t know, you have to ask them.” Strange, coming from a man who had once proudly and loudly declared himself as the “Minister for the Chief Justice”!
Malik’s other “achievements”
On 10 Oct. 2009, the Court of Appeal, with Malik as the presiding judge, struck out Anwar Ibrahim’s RM100 million defamation suit against Dr Mahathir on the technicality that the memorandum of appeal was not in Bahasa Malaysia. Malik stressed the supremacy of the national language as he delivered his 31-page written judgment in English!
On 5 Oct. 2011, the Federal Court allowed Anwar Ibrahim’s application to expunge portions of a written judgment made by Malik on 6 July in the Court of Appeal related to the Sodomy II trial, that were deemed disparaging of the politician and his lawyers.
Karpal Singh (Anwar’s lawyer) complained to the judges that Malik had “without jurisdiction and for an apparent purpose invoked a non-existent jurisdiction to maliciously and scurrilously (go into the merits and) embark on a relentless attack on Anwar and the lawyers (in the written judgment)”.
“This amounts to judicial assassination of the worst kind … (and) to make matters worse, the appellant and the lawyers were not given an opportunity to defend ourselves… as the appellate court had allowed the preliminary objection.
“The remarks were uncalled for and put the Judiciary in bad light. If the case was allowed to be heard on its merits, we (would have been) prepared to defend ourselves. However, we were not allowed to do so as the court allowed the preliminary objection.”
Karpal also questioned as to how Malik produced the written 40-page judgment on the day the appeal was heard at the Court of Appeal. Various law journals had reported that the judgment was produced on 6 July, but lawyers for Anwar only received it on 15 Aug.
Malik had also scurrilously written: “This case will fall in history. It will be chronicled as the only known case in our country or for that matter within the Commonwealth enclave where the appellant as an accused person persistently and consistently filed one application after another in an attempt to recuse the learned trial judge from hearing and continuing to hear the sodomy trial which is ongoing.”
Very ironically, it is the case of Abdul Malik which will fall in history and be chronicled as the only known case in our country or for that matter within the Commonwealth enclave where the one found guilty of plagiarising in a copyright infringement case was the judge himself!
The end justifies the means.
Only in Bolehland can a third class honours (equivalent to just a passing grade) graduate become AG. Only in Bolehland can a copycat judge be excused and promoted. Do you know the mediocrity of those who helm our GLCs ? These people are only fit to take care of the rambutan tree…
//a copycat judge who allegedly plagiarised chunks of a judgment of another judge – in a copyright infringement case!//
What do you expect when the pm himself copied the 1malaysia idea from the original owner of 1Israel?
The Bar Council could instruct all its members to apply for this judge to recuse himself in all their cases in the Court of Appeal, using the same grounds as Karpal if they support the motion to subject this sorry excuse for a judge to appear before a tribunal.
He also should not be allowed to just resign to save his skin.
In the old days, students caught copying homework would be paraded around the schools, wearing dunce caps and placards reading”I am a dirty copycat”, before being given a good whacking.
Abdulo Maliko Ishako should be made to undergo the same treatment before being sacked without benefits.
In UMNO’s bid to make the next THE rankings they’re embarking on a massive plagiarism exercise to pile up research papers. Professors are instructed to see to it it happens.
“Will Justice Abdul Malik Ishak have enough honour left to resign on his own accord?”
Honour? What is that? This is Bolehland, you know.
“Asked why the judiciary had not censured Abdul Malik until now, he said: “I don’t know, you have to ask them.”
Ask me lah. So that he will make sure UMNO and the Government will win all cases and Anwar and Pakatan will lose all.
“Karpal also questioned as to how Malik produced the written 40-page judgment on the day the appeal was heard at the Court of Appeal.”
Simple lah. In Bolehland, judgments are written before the hearing begins.
Dis land is governed by UmnoB/BN which do not hv ‘SHAME’, ‘HONOR’, ‘INTEGRITY’ in their vocabulary; likewise their cronies n appointees too hv no honor, shame n integrity
When judges do ‘cut and paste’ jobs, you are in trouble, deep trouble.
First they outsource their written judgements (Lingam remember?), now they cut and paste.
And they get promoted with a lot of pingats and titles.
Truly Cemerlang, Gembilang and Terbilang. Ooops, I forget. This slogan is out of date, obsolete.
In some Varsities, all student assignments are passed through Turn-it-in to check for plagiarism.
We should now do the same for all our judges’ judgements.
The judges should also make a sworn declaration on the front page that the judgements are original and their own.
The integrity of judges should never be in doubt. If there is any wrong doing, the culprit should do the honourable thing. Otherwise, how can anyone address him / her as “Your honour”?
Isn’t Sodomee II a dotting the i and crossing the t of Sodomee I?
Let’s not, before real facts known, make a “Copy Cat Judge” out to be worse than “imposters”, “intellectual and legal frauds”, “incompetent”! There’s more to it. Everyone condemns plagiarism because its not original and stealing someone else’s credit without necessary attribution. But so what? Plagiarism is however a commoner phenomenon in legal field than other areas (journalism/book authorship). Most of the time the judges are quoting and citing legal authorities and judgments of other judges due to the need for order based on doctrine of precedence; the other part of the time copying in part from what the lawyers have stated in their pleadings.
If some one else (whether lawyer or judge) has cited the facts or the law clearly and accurately with brevity in the manner than a judge could never do, and these facts and law apply, what is the problem? His job is to do justice, not so much as to be original when ¾ of time he has to refer for guidance to past cases and judgments citing facts and law! To say its an irony because the judge alleged this plagiarism was presiding a “copyright case” is itself ironical because there is no copyright in legal judgments copied! They are there to be extracted copiously for repeat in the judgments. I rather a plagiarised judgment that is independent and do justice than one perfectly original but skewed in partisan support of one side against the other without proper support of reason or law or facts but some other unmeritorious motives.
By the way the judge alleged of plagiarism was trained in and graduated from what many would consider aTHE’s high ranking university way back in 1974 when English was still in primacy (that may check some suspicions on his proficiency of language based on which judgment was rendered). Not every lawyer – or judge know every field of law and here he was expected to write a judgment on some copyrights case (intellectual property) which he was probably not that familiar having spent the better part of his career in Judicial Service/AG Dept looking at criminal cases, but still have now to grapple within KPIs imposed by Ex CJ. He looked at some Singapore judgement, he found his case fitted the play of facts and the law in that case, he knew that the S’pore judgment was right in such same case, so he just copied forgetting to attribute, his excuse was that he was concentrating more on the principles to be enunciated than originality of language, which in spite of ardous effort, he would not make it better, and could only make it worse if he had tried. Whilst we are not perversely extolling the virtues of Plagiarism, the fact is, given the legal/judicial nature of work in which everyone quotes everybody else who is the legal or judicial authority on a point, what great sin has this judge committed to the extent of the matter being raisefd in parliament or even a tribunal called for?
An incompetent and unfair judge of great originality is worse than a fairly competent and fair plagiarist of a judge. The first who is incompetent convicts an innocent accused charged without support of logic facts or law and whilst the poor guy langusihes in remand waiting and waiting for his written judgment to be used for filing his appeal to the appelate court to hopefully secure an acquittal, the incompetent judge takes his own sweet time due to dictates of “originality” to fabricate a justification to support why he first convicted the person. It would be better he plagiarise somewhere to get his judgment out fast so that it can be appealed against and overruled fast at higher level. Plagiarism, though hardly a laudable act is neither a great a judicial sin as incompetence and partisan unfairness that people should be fearful of.
Dear Jeffrey, Thanks for your comments. As always, they are rather interesting and offer us a very different perspective of an issue that is raised. In fact, I always look fwd to yr thought-provoking responses. All that is left for me to say on the issue is the what Malik did was very wrong. Plagiarism is an act of dishonesty which one does not expect of a High Court judge.
Hi, Martin, you’re welcome, I’d just like to add that your abhorrence at plagiarism, as an act of dishonesty, is entirely understandable and natural (as a writer). The reason in part is because of the natural differing perspective between (say) a writer/book author/journalist and those in legal fraternity esp a judge. What a writer/book author/journalist writes has to be original in toto. He just cannot plagiarise someone else’s writing without attribution as it strikes at the heart of the work. However in a judgment, the heart of the work is the application of known law and rules to a set of particular/unique set of facts. That first application must be correct (logical and fair) – and that application, is unique and cannot never be plagiarized, even if the judge wants to, as no other cases and judgments will be exactly on all four squares with the situation before him.
So in that sense that application leading to the final decision of which way to go favouring or against which party – whether right or wrong, fair on unfair – is always “original”. The rest of the judgment is merely in support explaining how and why the decision is what it is. The “rest” in that sense is peripheral, in the nature of this kind of work. He may paraphrase here and there, quote and attribute, and will not be accused of plagiarism. If he were lazy he just copies wholesale passages forgetting to attribute and is so accused. Either way the heart of his work is the final decision based on the application of law to the unique facts – and here’s where the merit of his decision is adjudged more- and how he gets to that point, properly paraphrasing with attribution or just copying (plagiarizing) is not the heart of his work as would be in a case of a writer/journalist. You see the party whom his “plagiarised’ decision favours, if deemed fair and correct, will never complain but the party against whom his decision impacts will always complain and blow public the plagiarism, as a ground more for overturning it, and getting it overruled, never mind the intrinsic merits of the decision in terms of fairness/correctness.
I doubt that…the tree will probably wither or the fruits will be sold to outsiders like what is happening to the citizenship treachery and treason.
In other words, judges must take the UTMOST care when writing their judgements so that the case for appeal is diminished?
I am sure lawyers are well schooled about the issues like plagiarism and the judge has really to excuse.
The Law Minister of the time should have taken swift action then but ALAS……
sorry typo
“really to excuse” correct to
“really no excuse”
Jeffrey, nice attempt at trying to scatter what is indeed a clearcut case of plagiarism. Even a first-year law student would be conscious about the need to acknowledge excerpts in their assignents. Law lecturers have read and taught many of those judgments over and over again. They can spot most copycats a mile away.
Now, a seasoned judge? one who sits in the august chambers of the appelate court! one whose so righteous judgments shame and intimidate lawyers who appear before him! well, if he has copied so copiously, he cannot feign that he had one drink too many or that his secetary mistyped or that he had a bad day with his wife or mistress?
OK, Jeffrey, to put it plainly, plagiarism is plagiarism. One should never condone, wave it away with a flourish or explain it as a one-off foible. No, the judiciary is bound by standards not normally expected of schoolboys or novices. Excellence is not only expected, it is demanded. Any other position is only tenable in kangaroo courts or Bolehland; surely not the currency of courts of distinction.
Sorry, Martin, you can’t let Jeffrey get off so easily on this one.
ENDANGERED HORNBILL, thanks for the rebuttal/response. Where we differ is that I don’t agree that “plagiarism is plagiarism”. My position is nearer to what one commentator by nick of Panopticon commented in RPK’s Malaysia Today , October 15, 2011 21:28:13 where said (I quote) “a Legal Judgment cannot be held on the same level as literary works and/or intellectually properties. Though a judgment may be a product of the human intellect it is not a copyright-able thing. That is why you would not see the “This so and so is protected under the great and awesome Copyright Act 1987 and is the work of Mr.X” at the bottom of every judgment for example”. Whilst I am not praising plagiarism and urging the judge alleged to have done so to be promoted I am, at the same time convinced that it must be presumed summarily that he had done such a great wrong in a profession where it is normal for judges to cite and quote the reasoning of other judges as judicial authority.
Ooops – “I am, at the same time NOT convinced that it must”.Having said the above and thinking further on it ENDANGERED HORNBILL is not wrong either. The trouble is that we don’t have the exact judgment/wordings that the judge is said to have plagiarized. We (or at least I) don’t know the extent. Plagiarizing a paragraph or two or three is a different ball game from copying wholesale 95% of another earlier Judgment. ENDANGERED HORNBILL has a point if one discovers 2 judgments by 2 different judges in 2 different cases on 2 different dates where the second is 95% copied verbatim from the earlier. If such were really the case the second judgment accused of plagiarism poses a unique challenge regarding whether the copycat judge could ever had considered the issues seriously enough in deciding the way he did; and whether ‘copycat’ judge’s reasons for judgment can ever be considered to be representative of his own thought out reasons. If such doubt arises it poses problems to higher appellate courts whether they could take his judgment meaningfully and seriously or ought summarily to overrule it. In such circumstances of whole sale plagiarism, it is hard to defend it as the judgment and the way it is rendered does not meet the functional requirement of public accountability, and ENDANGERED HORNBILL will be right.
The Bar Council would summarily condemn the judge or plagiarisation but one wonders, amongst its member lawyers, how many of them would actually complain and cry foul if the judge had otherwise copied/plagiarized their pleadings or submissions in Court (instead of another court’s judgment) and returned a verdict favourable to their clients! More likely the lawyer who won the case (plagiarisation notwithstanding) would say “I always write my submissions and arguments in a form that allows the judge to copy easily and be transferred expeditiously to a correct judgment delivered by the judge. Delay in rendering and writing judgment is justice delayed and helping the Judge in this way is more a reflection of my compelling genius than his lazy stupidity since there is no way he could have written/paraphrase it in another way to capture the essence of justice!”
Isn’t it the practice of judges to cite precedence to support judgement rendered? In that case, borrowing words from the past judgement would not be cited as plagiarizing. Either the judge wanted to appear original, or he was afraid to quote precedence from Singapore.
Judicial slothfulness or chicanery may be to blame; we don’t really know.
The simple point in all legal learning and writing is that if something is quoted, it should at least be within “quotation marks”, even if the source is forgotten. [But with today’s IT and search facilities, any law student can trace anything. It’s so easy.] If, however, something is not lifted verbatim, then it should not be plagiarism. With all the hullabaloo created over this case, I am inclined to suspect considerable parts were plagiarised. I think Jeffrey is not advocating a 95% rule or even any specific %. There is no necessity to fix any %….! As the English say, what is obvious to the man on the Clapham bus should be the yardstick. We don’t measure plagiarism in moles or relative formula masses. We just know there is or there isn’t. And one doesn’t need to go beyond first-year law to understand that. So I feel this judge has messed up big-time on a moment of slothfulness. It was silly to think that no one would ever know. All judgements are accessible to the public.
I think this copycat judgment is only the tip of the iceberg of judicial rot. Believe you me, some judgments are not even intelligent! Call it what you will, ex-CJ Zaki. I call it judicial sloth, rot or lack of legal fibre.