Archive for category Judiciary
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. Read the rest of this entry »
PAC proposal to investigate CKC for cbt – testimony of MACC impotence/failure
Posted by Kit in Corruption, Judiciary, PKFZ, Parliament on Monday, 9 November 2009
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. Read the rest of this entry »
Super cover-up of RM12.5 billion PKFZ scandal?
Posted by Kit in Budget Debate, Judiciary, PKFZ, Parliament on Friday, 30 October 2009
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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?
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.
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A Clever, Conveniently Contradictory and Convoluted Judgment
Posted by Kit in Judiciary, Martin Jalleh on Friday, 11 September 2009
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.
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The Court of Appeal’s “outline of reasons” in Anwar Ibrahim v P P – a critique
Posted by Kit in Anwar Ibrahim, Court, Judiciary, Law & Order, NH Chan on Tuesday, 21 July 2009
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:
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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.
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;
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: Read the rest of this entry »
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:
Read the rest of this entry »
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