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Five myopic judges in Federal Court

By NH Chan

On Feb 9, the five-member Federal Court panel handed down a unanimous decision on Nizar Jamaluddin versus Zambry Abd Kadir. The judgment of the court was read by Chief Judge of Malaya Arifin Zakaria.

The judgment is 40-pages long and if you have the stamina to persevere to the end of the judgment you would have realised that these judges of the highest court in the land have, under the pretext of interpretation, decided that the Perak sultan has the power to dismiss the incumbent Menteri Besar Nizar when the Laws of the Constitution of Perak does not confer any executive power on the sultan for so doing.

If the sultan has no power to dismiss Nizar then, we should ask, how could the Federal Court commit such a devastating error to their reputation as judges of the highest court in the land?

That is why the ability to pick out the one real point that matters is so important. That is why young advocates learnt how to spot it very early in their career if they are not to bore the judge, whom they are addressing, to tears.
Continue reading “Five myopic judges in Federal Court”

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Muhyiddin is among the most unqualified persons in the Najib Cabinet to talk about the doctrine of separation of powers

I never thought that a day would come when Deputy Prime Minister Tan Sri Muhyiddin Yassin could prate about the doctrine of separation of powers.

Who is he to suggest that I am confused and do not understand separation of powers for asking for an emergency Parliamentary meeting on Datuk Seri Anwar Ibrahim’s Sodomy2 charges.

This is because Muhyiddin is among the most unqualified persons in the Najib Cabinet to talk about the doctrine of separation of powers.

The doctrine of separation of powers among the Executive, Legislature and the Judiciary suffered the worst erosion and emasculation, subversion and sabotage since the “mother of all judicial crisis” in 1988 when the then Lord President Tun Salleh Abas and Supreme Court judges were sacked for not complying with the whims and fancies of the then Prime Minister Tun Dr. Mahathir Mohamad.

If Muhyiddin had any doubts about the perversion and subversion of the doctrine of separation of powers in the past two decades, he need only ask his Cabinet colleague, Datuk Dr. Rais Yatim who had written a doctoral thesis on the subject – although Rais had recanted his views to get back to the Cabinet.
Continue reading “Muhyiddin is among the most unqualified persons in the Najib Cabinet to talk about the doctrine of separation of powers”

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Justice is done in by the Federal Court

By Martin Jalleh
 
Once again justice is shamelessly sacrificed on the altar of political expediency by judicial shenanigans of the highest court in Bolehland. It is a sad day indeed to see how five “blind” men of supposed legal stature strove so hard not to see and sense what was staring at them in the Federal and Perak constitutions.
 
The judiciary – the very portal of justice continues to be reduced to a convenient playground for the ruling elite to legitimize their power grab, persecute their opponents and promote their political agenda, through the perversion of the rule of law by certain court jesters.

The Federal and Perak Constitutions are dead, done in by those who decided to disregard, desecrate and discard constitutional provisions to treat the doctrine of separation of powers with deference. They are rigorously and rightly interpreted only when it best suits Umno.
 
In stark comparison to the courageous, cogent and convincing judgment of High Court judge Abdul Aziz Abdul Rahim, the cowed five-member bench caved in and conveniently decided to take the cue from the powers that be.
 
It comes as no surprise that their “collective written judgement is apparently riddled with contradictions”.The five judges surely qualify for retired Justice N H Chan’s classic category of “recalcitrant” and “Humpty Dumpty” judges in the Perak conundrum.
  Continue reading “Justice is done in by the Federal Court”

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Four reasons for controversial ‘Allah’ ruling

Malaysian Insider
January 17, 2010
By Debra Chong

KUALA LUMPUR, Jan 17 — High Court judge Datuk Lau Bee Lan’s controversial ‘Allah’ ruling that rocked the nation over who had rights to the term cited that the Home Minister and government’s actions had been illegal, unconstitutional, irrational and had failed to satisfy that it was a threat to national security.

She also wrote about the apparent conflict in the matter between the Federal Constitution and the various state enactments apart from claims by Muslim groups that the matter cannot be taken to a civil court.

The judge released the written grounds of her Dec 31 judgment late on Friday while the increasingly acrimonious public debate over who has the right to use the word “Allah” continues to rage on.

The Malaysian Insider obtained a copy of her 57-page judgment where the judge lays out the reasons and the laws behind her oral pronouncement.

In laying out her judgment, Justice Lau ruled that the Home Minister and the Government of Malaysia, who were named as 1st and 2nd Respondents respectively, has the discretion under Section 12 of the Printing Presses and Publications Act to issue or revoke a permit to the Archbishop of Kuala Lumpur Reverend Tan Sri Murphy Pakiam (the Applicant) to publish the Church’s newspaper, Herald — The Catholic Weekly.

But, she stressed, the respondents had made decisions that were illegal, unconstitutional and irrational when they barred the Catholic newspaper from publishing the word “Allah” in its Bahasa Malaysia section. Continue reading “Four reasons for controversial ‘Allah’ ruling”

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PAC proposal to investigate CKC for cbt – testimony of MACC impotence/failure

Why must Malaysian Anti-Corruption Commission (MACC) wait for Public Accounts Committee (PAC) recommendation for further investigation into former Transport Minister Tan Sri Chan Kong Choy for possible offence of criminal breach of trust in the RM12.5 billion Port Klang Free Zone (PKFZ) scandal when the first report was lodged with the Anti-Corruption Agency (ACA) as far back as 2004?

Isn’t this testimony of the failure, ineffectiveness and impotence of MACC and its predecessor ACA?

These are the questions I posed to the Minister in the Prime Minister’s Department, Datuk Seri Nazri Aziz in the ten minutes he touched on corruption in the government winding-up on the budget before he ended his reply for lunch-break today.

I remarked that Nazri was defending the status quo of a worsening corruption problem in Malaysia instead of spearheading an attack on corruption, as is happening in Indonesia.

Nazri was in his classic mode of denial and also disagreed that there is need for a parliamentary motion to adopt the PAC report on the PKFZ scandal for all MPs to take a stand on the PAC recommendations. Continue reading “PAC proposal to investigate CKC for cbt – testimony of MACC impotence/failure”

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Super cover-up of RM12.5 billion PKFZ scandal?

  1. RM12.5 billion Port Klang Free Zone (PKFZ) scandal.

    The Cabinet decision last month to set up a super task force, headed by Chief Secretary to the Government Tan Sri Mohd Sidek Hassan, to take over all investigations into the PKFZ scandal is not a demonstration of political will to get to the bottom of the “mother of all scandals” but the opposite.

    I see it as a major step backwards in public accountability and good governance, as it smacks of being a super “cover up” task force for the PKFZ scandal.

    What is needed is a Royal Commission of Inquiry to conduct a comprehensive and no-holds-barred investigation into the “mother of all scandals” including relevant Ministerial and Cabinet aspects of the scandal instead of trying to sweep the whole issue back under the carpet.
    In the first place, is Mohd Sidek the most appropriate person to head the super task force on the PKFZ scandal?

    Continue reading “Super cover-up of RM12.5 billion PKFZ scandal?”

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Cleaning up the Judiciary – was the Chief Justice right?

by Art Harun

When I first read the news report in the Star that YAA Tan Sri Zaki, the Chief Justice, had told 2 errant High Court Judges to voluntarily resign, my initial reaction was one of pleasure. I thought it was good that the CJ has finally cracked the whip and told these useless Judges to leave the Judiciary. However, after having thought about this issue with a little bit more depth, I am now hesitant to say that it was a good move by the Chief Justice.

Our Judiciary was among the best in the Commonwealth prior to 1988. We had people of absolute integrity and capable of serving justice with the highest standard of knowledge of the law coupled with flawless judicial temperament. Tun Suffian was highly regarded as among the finest. His Majesty the Sultan of Perak, Raja Azlan Shah was among the best. Tan Sri Eusoffee Abdool Cadeer, who would scold Counsel in Latin, could teach a thing or two about the law even to some British law Lords themselves. And at the lower rung of the Courts, we had Judges such as Dato’ VC George; Dato’ Mahadev Shanker; Dato’ NH Chan; Dato’ Razak Abu Samah, Tan Sri Harun Hashim et al. It was indeed a pleasure and an honour for me, as a young Counsel then, to appear before all these legal giants.
Continue reading “Cleaning up the Judiciary – was the Chief Justice right?”

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A Clever, Conveniently Contradictory and Convoluted Judgment

by Martin Jalleh

The perversion of justice in Bolehland continues to persist with the judiciary playing politics to please and pander to the will of the powers that be. The Perak constitutional crisis has revealed a judiciary, the chief guardian of the Constitution, willing to compromise justice by ignoring the Federal Constitution and interfering in the proceedings of a state assembly.

The judiciary descends into abysmal depths as it blatantly disregards constitutional provisions and treats the doctrine of separation of powers with deference,. It continues to deliver, in cases related to the Perak constitutional crisis, what former and retired Court of Appeal judge N H Chan describes as “bad” and “perverse” judgments.

Even when the judiciary chooses to interpret the Federal Constitution correctly, it does so when it is politically expedient and best suits the BN (also read as Umno). There is no better example of this “selective application” than the recent Ipoh High Court ruling that it had no jurisdiction to hear the proceedings of the Perak legislative assembly.
Continue reading “A Clever, Conveniently Contradictory and Convoluted Judgment”

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The Court of Appeal’s “outline of reasons” in Anwar Ibrahim v P P – a critique

By NH Chan

I must apologize for the delay in giving this critique. The Court of Appeal gave its decision on July 1. I received the “outline of reasons” from Ngan Siong Hing only last Friday, 17 July 2009. Without him supplying me with a copy of the judgment of the Court of Appeal I would not be able to write this critique. Also as I do not have access to a law library I depend a lot on his generosity to get the legal material that I need to write my essays for ordinary people to understand what the judges are talking about. This is to enable the common people of this country to judge the judges for themselves.

The whole case can be understood just by readings 418A(l) and (2) and s376(l) and (2) of the Criminal Procedure Code.

Power corrupts

David Pannick in his book Judges, OUP, 1987, wrote, p 76:

In all societies throughout history, judges have occasionally been adversely affected by their power. An early example occurs in the biblical story of Daniel and Susanna. Two elders of the community were appointed to serve as judges. They saw Susanna walking in her husband’s garden ‘and they were obsessed with lust for her’. When she resisted their advances they falsely accused her of infidelity to her husband. ‘As they were elders of the people and judges, the assembly believed them and condemned her to death.’ A young man named Daniel protested that an enquiry should be made into the judges’ allegations. He accused them of giving ‘unjust decisions, condemning the innocent and acquitting the guilty’. Under his careful cross-examination, the judges were proved to be liars: Daniel and Susanna in The Apocrypha.

The English Bench has had its fair share of bad judges. . . .In the seventeenth century, the Bench ‘was cursed by a succession of ruffians in ermine [most notably Jeffreys and Scroggs (Sir William)], who, for the sake of court [royal] favour, violated the principles of law, the precepts of religion, and the dictates of humanity’: John Lord Campbell, Lives of the Lord Chancellors (5th edn, 1868), vol 4, p 416.

The misuse of power from whatever quarter it may come

In The Family Story, Butterworths, 1981, Lord Denning said, p 179:
Continue reading “The Court of Appeal’s “outline of reasons” in Anwar Ibrahim v P P – a critique”

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Part 2 – Gobbledegook and regurgitation in the written judgments of the Court of Appeal in Zambry v Nizar: Postscript – Zainun Ali JCA’s judgment

By NH Chan

Postscript

On Tuesday, July 7 2009 I posted an article under the above title on the web with various news portals. At that time I only have the written judgments of two of the judges Raus Sharif and Ahmad Maarop JJCA. I have just received the third judgment that of Zainun Ali JCA from Mr. Edmund Bon of loyarburok.com through Mr. Ngan Siong Hing of Ipoh for which I am most grateful. Below is my critique of the written judgment of Zainun Ali JCA.

The points that really matter

As I have said it before in the first part of this article, there are only two points that really matter in the appeal of the case in question. They involve the reading of two clauses in Article 16 of the Perak Constitution and an understanding of what the clauses mean. A very experienced judge, the late Lord Justice Salmon in a talk which he gave to young members of the English Bar (Some Thoughts on the Traditions of the English Bar) said:

…..remember this, in few cases, however complex, is there usually more than one point that matters. Very seldom are there more than two and never, well hardly ever, more than three. Discover the points that really matter. Stick to them and discard the rest.

Actually, Salmon U was revealing to budding advocates the mind of a judge. The young advocates are informed, before they embark on their career, that a judge makes his decision by discovering the point that really matters or, exceptionally, the points that really matter. This revelation should place aspiring advocates on the right direction to becoming good advocates.

Continue reading “Part 2 – Gobbledegook and regurgitation in the written judgments of the Court of Appeal in Zambry v Nizar: Postscript – Zainun Ali JCA’s judgment”

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Gobbledegook and regurgitation galore in the two written judgments of the Court of Appeal in Zambry v Nizar Jamaluddin

By NHChan

Prologue

I shall start with an aside on the dictionary definition of the two words which feature in the title of this article.

Gobbledegook means unintelligible language.

Regurgitate means repeat information without understanding it. Regurgitation is the noun.

After you have read the article you should have an inkling of what I am trying to suggest with the words. You can then judge for yourself.

There are only two points that really matter in this appeal: Clauses (2)(a) and (6) of Article 16

Let us see if ordinary people like us can understand Clauses (2)(a) and (6) of Article 16 of the Constitution of Perak better than the judges of this Court of Appeal.

There are only two points that really matter in the appeal. They are Clauses (2)(a) and (6) of Article 16 and they read:

(2) (a) His Royal Highness shall first appoint as Menteri Besar to preside over the Executive Council a member of the Legislative Assembly who in his judgment is likely to command the confidence of the majority of the members of the Assembly;

Continue reading “Gobbledegook and regurgitation galore in the two written judgments of the Court of Appeal in Zambry v Nizar Jamaluddin”

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The regurgitation of not administering justice according to law in the written judgment of Nik Hashim FCJ in Jamaluddin & ors v Sivakumar

Flashback

To refresh your memory, I refer to the report in the New Straits Times of Friday, April 10, 2009:

PUTRAJAYA: The Federal Court has declared that three assemblymen who quit their parties are still members of the Perak state legislature.
This follows an unanimous ruling by a five-men bench yesterday which ruled that “The Election Commission is the rightfulll entity to establish if there was a casual vacancy in the Perak state legislature,” said Federal Court judge Tan Sri Alauddin Mohd Sheriff.
Sitting with him were Datuk Arifin Zakaria, Datuk Nik Hashim Nik Abdul Rahman, Datuk Sen S Augustine Paul and Datuk James Foong.
Last month, Party Keadilan Rakyat’s Jamaluddin Mohd Radzi (Bebrang) and Mohd Osman Jailu (Changkat Jering), together with DAP’s Hew Yit Foong (Jelapang), filed an urgent application for the Federal Court to decide their matter.
The three wanted a declaration whether it was the Election Commissioner or the Perak Speaker (V Sivakumar) had the final say in determining a vacancy. In February, Sivakumar, using resignation letters signed by the three, had declared the seats vacant.
He informed the Election Commission, but the commission refused to hold by-elections on the ground that there was ambiguity over whether the assemblymen had resigned voluntarily.

Following this newspaper report, I wrote an article which was posted on several portals on the Internet titled “When justice is not administered according to law“. This is what I said: Continue reading “The regurgitation of not administering justice according to law in the written judgment of Nik Hashim FCJ in Jamaluddin & ors v Sivakumar”

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The gobbledegook of Augustine Paul FCJ in the Federal Court’s decision of Zambry v Sivakumar

By N H Chan

Gobbledegook

Most, if not all, laymen will find the written judgment of Augustine Paul FCJ – who eventually put in writing the judgment of the unanimous decision of the infamous five – most perplexing. I am not surprised. I find it unintelligible also – in fact, it is what the word “gobbledegook” means in the English language, “unintelligible language”.

In case you have forgotten

In case you have forgotten, I shall try to jolt your memory. The infamous five were Alauddin bin Dato’ Mohd Sheriff PCA, Arifin Zakaria CJM, Nik Hashim Nik Ab Rahman, Augustine Paul and Zulkefli Ahmad Makinudddin FCJJ. Their story exploded on the front page of the Star newspaper of Friday, 17 April 2009. It carried the startling and outrageous decision of the Federal Court. The headline proclaims, “Court: Siva does not have right to suspend seven”. The report reads:
Continue reading “The gobbledegook of Augustine Paul FCJ in the Federal Court’s decision of Zambry v Sivakumar”

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Did Kit Siang and Karpal commit sedition?

By NHChan

Prelude – please read it before reading the article

I write this article so as to apprise the people who, in the mind of the general public, have taken the law into their own hands through the harassment of law abiding citizens of this country with the threat of using the Sedition Act 1948 on them. They should not have done it without first taking expert legal advice on the technical and difficult law of sedition under the Act.

After you have read this article, I am sure you will agree with me that the law of sedition is not easy for a layman to understand. Even lawyers and judges have found great difficulty in understanding it – let alone an uninitiated policeman. If the police are not careful, one of these days they will find themselves at the receiving end of a suit for malicious prosecution, false arrest or whatever the victims of their harassment would throw at them.

I hope you will bear with me if this time I am not able to explain difficult law in simple language as much as I would like to. It is at a time like this that I really appreciate the great ability of the late Lord Denning who was so adept at explaining difficult law to us ordinary folk. Continue reading “Did Kit Siang and Karpal commit sedition?”

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Congrats Zaki for being conferred a “Tun” but where is Court of Appeal judgment in Nizar vs Zambry case?

Congrats to Chief Justice Tun Zaki Azmi for being conferred a “Tun” on the occasion of the Yang di Pertuan Agong’s birthday on Saturday.

But where is the Court of Appeal judgment in the Nizar vs Zambry case after its five-minute shotgun unanimous decision 18 days ago overturning the landmark decision of Justice Datuk Abdul Aziz Abdul Rahim of Kuala Lumpur High Court by declaring Datuk Zambry Abdul Kadir (self-claimed 3-in-1 Mandela, Gandhi, King) as the lawful Perak Mentri Besar?

Court of Appeal judge Datuk Md Raus Sharif had promised on May 22 that the written judgment would be made available in a week when Datuk Seri Mohammad Nizar Jamaluddin’s counsel Sulaiman Abdullah gave notice of leave application to the Federal Court to appeal, but it is now 18 days since the Court of Appeal decision.
Continue reading “Congrats Zaki for being conferred a “Tun” but where is Court of Appeal judgment in Nizar vs Zambry case?”

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5-minute finding (not judgment) of Ct of Appeal shot-gun session declaring Zambry lawful Perak MB – hydra-headed monster claims another victim

The hydra-headed monster of the Perak crisis has claimed another victim with the 5-minute finding (and not judgment) of Court of Appeal shot-gun session declaring Zambry lawful Perak Mentri Besar.

All who packed into the Court of Appeal in the Palace of Justice in Putrajaya to hear its judgment in the Nizar vs Zambry appeal could not believe that the whole shot-gun session was over in five minutes of delivery, not of a judgment, but findings of the Court of Appeal.

There was no reasoned grounds of judgment but mere findings of the Court of Appeal in an unanimous decision, i.e. 3 – 0.

As Professor Shad Faruqui had presciently written in his weekly newspaper column, the Perak crisis has become “a hydra-headed monster that cannot be eliminated by ding-dong judicial decisions”, and today, the hydra-headed monster has claimed another victim with the five-minute finding (not judgment) of the Court of Appeal shot-gun session declaring Datuk Zambry Abdul Kadir as the lawful Perak Mentri Besar.
Continue reading “5-minute finding (not judgment) of Ct of Appeal shot-gun session declaring Zambry lawful Perak MB – hydra-headed monster claims another victim”

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Abdul Aziz judgment on Nizar case

Today the Court of Appeal at the Palace of Justice, Putrajaya is hearing the appeal against the landmark judgment of Justice Datuk Abdul Aziz Abdul Rahim in the Nizar vs Zambry case delivered last Monday, 11th May 2009 declaring Nizar as the lawful Perak Mentri Besar.

Nizar is not getting a five-member Court of Appeal panel. The three judges hearing Nizar’s application to discharge Zambry’s “stay order” obtained by a single-judge Court of Appeal within 24 hours of the historic judgment and Zambry’s appeal against the Kuala Lumpur High Court judgment are justices Md Raus Sharif, Zainun Ali and Ahmad Maarop.

As I said in my tweet two hours ago:

“Parties agree that appeal proper b heard 1st and if at the end of hear’g ct cant give decision then discharge of stay will have 2 b heard.”

While we wait for the outcome from the Court of Appeal, the landmark Abdul Aziz judgment which illuminates the complicated terrain thrown up by the Perak constitutional crisis is worth reading (here).
Continue reading “Abdul Aziz judgment on Nizar case”

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Do you know why the Federal Court is not giving a written judgment in the Perak debacle?

by N H Chan

The answer can be simply put. It is because Article 72 (1) of the Federal Constitution is written in unambiguous language which even a child can understand. As I have said before in an earlier article that the words, “The validity of any proceedings in the Legislative Assembly of any State shall not be questioned in any court”, mean what they say. Nothing can be plainer than that. No one in his right senses would try to interpret the obvious meaning of the words in Article 72, unless he wants to say the words mean something else. But the Federal Court was not prepared to do that. And the reason is because they do not want to be known as Humpty Dumpty judges.

Remember Humpty Dumpty in Lewis Carrol‘s, Through the looking Glass?:

“But ‘glory’ doesn’t mean ‘a nice knock-down argument’,” Alice objected.

“When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean – neither more nor less.”

Continue reading “Do you know why the Federal Court is not giving a written judgment in the Perak debacle?”

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Why is Zambry getting ‘special treatment’?

(When I spoke at the public forum “From May 13 to 1Malaysia – The Future of Malaysian Nation Building” at the Petaling Jaya Civic Centre on Wednesday, 13th May 2009, I had posed two questions, viz:

1. Why the Court of Appeal could fast-track to hear within three hours Datuk Zambry Abdul Kadir’s application for “stay” of Justice Abdul Aziz Abdul Rahim’s landmark judgment delivered on 11th May that Nizar was the lawful Perak Mentri Besar and grant it in another hour; while it was snail-pace in needing five days to hear Datuk Seri Mohd Nizar Jamaluddin’s application to discharge Zambry’s “stay”; and

2. Whether Malaysians can expect justice in cases involving top Umno leaders when there is an Umno Chief Justice, Tan Sri Zaki Azmi?

This proved to be an understatement, as last Friday, it was announced that Nizar’s application to set aside the stay order, filed on 13th May, was postponed from May 18 to May 21 – the hearing date for Zambry’s appeal.

Zambry required less than three hours after filing his application to get a single-judge Court of Appeal to hear his “stay” request, while Nazry requires eight (from the earlier five) days to get his application to discharge the “stay” order heard.

Is this justice.

No wonder Leong Cheok Keng, Nizar’s solicitors, raised a very pertinent question in his six-point statement below, framed by Malaysiakini as “Why is Zambry getting ‘special treatment’?”: Continue reading “Why is Zambry getting ‘special treatment’?”

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Najib improperly intefering with Court of Appeal hearing on Nizar vs Zambry case

It is most improper and irresponsible for the Prime Minister, Datuk Seri Najib Razak to try to influence the Court of Appeal hearing on Thursday on the Nizar-Zambry case, undermining judicial independence and integrity.

This is the first time in my memory in the past 43 years that a Prime Minister had made a public pronouncement on a matter which is the very subject of litigation before an appellate court, as if the Executive is sending out a clear, unmistakable and even threatening message to the Judiciary of the executive interests in a case pending before the Appellate court.

And if such impropriety had not happened in the past 43 years, it would not have happened in the first nine years of the nation’s independence, as Bapa Malaysia and the first Prime Minister, Tengku Abdul Rahman would have been very careful and meticulous in ensuring that there could not be any speck of suspicion that the Executive was interfering with the judiciary.

Hasn’t Najib heard the doctrine of the separation of powers among the executive, legislature and judiciary and the principle of the independence of the judiciary and the need for the Executive not only to respect, but also to be seen to respect, the integrity of the judiciary?

None of the previous five Prime Ministers had gone so far as to openly dictate to the judiciary how to it should adjudicate cases involving the Executive – despite the judicial darkness of the past two decades.

Why is Najib prepared to commit such a flagrant and blatant act of Executive disrespect and contempt for the Judiciary in such public and international manner?
Continue reading “Najib improperly intefering with Court of Appeal hearing on Nizar vs Zambry case”