by Hafiz Yatim
Malaysiakini
Sep 9, 11
A law professor said Chief Justice Zaki Azmi and Chief Judge of Sabah and Sarawak Justice Richard Malanjum, could have abdicated their oath of office by their refusal to interpret the question of law posed to them.
The question posed before the court was “whether section 5(3) and (4) of the Sarawak Land Code relating to the extinguishment of native customary rights are ultra vires Article 5 (Right to life) and Article 13 (right to property) of the Federal Constitution.”
Islamic International University professor Abdul Aziz Bari said by refusing to deal with the constitutionality issue, the Federal court has abdicated its duty.
“Under the Federal Constitution, the Federal Court which is the highest court of the land is essentially the constitutional court of the country; the main tribunal whose major duty is to take care of the constitution,” he said.
Abdul Aziz pointed out that their refusal meant that they had failed to fulfill their oath when taking office by saying “I will faithfully discharge my judicial duties in that office to the best ability, that I will bear true faith and allegiance to Malaysia, and will preserve, protect and defend its constitution.”
The don added that the court is the custodian of justice, so the judges have let the citizens down for the constitution is the supreme law of the land, one that protects them from arbitrariness whether in the form of laws passed by the legislature or through executive decisions.
“It is the duty of the judiciary to declare the rights of the citizens, being custodial of justice,” he said.
Yesterday Zaki and Malanjum refused to interpret the constitutional question affecting the Bato Bagi land case involving native customary right land in Sarawak which was seized to build the Bakun dam.
Zaki had cited the issue was not properly canvassed before the court to decide, while Malanjum said the lawyers had not fully assisted the court when the question posed was staring at the parties.
Cold feet at the bench?
Abdul Aziz said it is only the constitution which is left to protect the rights of poor indigenous Sarawakians.
“The decision, despite ruling that the deal was legal, did not base it on the constitution; something that the court was asked specifically by that aggrieved group of citizens. The court must decide, one way or the other, how it sees the issue. It cannot leave the matter open like it did today(yesterday),” he emphasised.
He noted the project itself is essentially “an environmental disaster”.
Abdul Aziz said the court has a history of being afflicted with cold feet when confronted with critical cases like these, this case not being the first.
“When the then Supreme Court was asked to decide on the constitutionality of Malaysia’s formation way back in 1963, the court at that time headed by Chief Justice Thomson (an expatriate), ruled in Tunku Abdul Rahman’s favour. A United States paper has also described the court as the least powerful of the three branches of executive, legislature and judiciary.”
“So the people have to decide what to do next; the battle in court is obviously over.”
‘Case cannot be good authority’
Abdul Aziz said from the law standpoint when the decision is not decided unanimously, then there is a loophole.
“Since there is only one judge who made a ruling (on the constitutional question) on it, this case cannot be a strong authority.
“In any case, one wonders why the two did not make up their mind? Is it a case of just wanting to let go this one and later the court can take a more restrictive approach?” he asked, adding that the bottom line is the same; that the land grab is now deemed legal and the citizens have lost.
The law expert said the right to property is guaranteed by the constitution under Article 13 of the supreme law of the nation.
“There seems to be a kind of politics or manoeuvring here,” observed Abdul Aziz.
#1 by sheriff singh on Saturday, 10 September 2011 - 1:29 pm
This is how our judges earn their buta gaji. Easy job. No need to decide anything. Just pass the buck and mark time till their retirements.
See the many religious conversion cases that were cleverly avoided? The many custodian cases involving religion? The Mazu case? The Perak cases? Now the NCR cases? In fact any controversial case that might reflect badly on the government or the judges.
This is how Zaki clears the backlog of cases, for which he claims a lot of credit, his achievements during his watch. Just avoid making decisions. Give a lot of lame excuses.
For these inactions they get nice pensions and ex-gratias.
‘Avoid ! Avoid ! Avoid!’ should be the Judiciary’s motto and client charter. And their offices should be renamed “The Palace of Injustice” where much time is wasted and nothing is achieved.
In 1Malaysia, injustice must be done and seen to be done. So there!
#2 by country for good malaysian on Saturday, 10 September 2011 - 3:34 pm
Is this how our country”s Judiciary works?
‘Yesterday Zaki and Malanjum refused to interpret the constitutional question affecting the Bato Bagi land case involving native customary right land in Sarawak which was seized to build the Bakun dam.’
What is the point of having the constitution then?
#3 by Loh on Saturday, 10 September 2011 - 3:50 pm
///Yesterday Zaki and Malanjum refused to interpret the constitutional question affecting the Bato Bagi land case involving native customary right land in Sarawak which was seized to build the Bakun dam.
Zaki had cited the issue was not properly canvassed before the court to decide, while Malanjum said the lawyers had not fully assisted the court when the question posed was staring at the parties.///–HY
The three judges admitted that they did not do their job professionally. In the Supreme Court of the US the lawyers for the two parties in dispute present their arguments and the Judges ask questions of them, and are fully assisted by the lawyers before they decide. In admitting that they were not able to decide for lack of knowledge it means that the system is flawed. The court is charged with the duty to decide, and the Judges should not have any excuse that they were not able to decide.
#4 by ENDANGERED HORNBILL on Saturday, 10 September 2011 - 5:27 pm
Shame on Zak, mala fide… mala terjun?
#5 by Loh on Saturday, 10 September 2011 - 5:29 pm
///Yesterday Zaki and Malanjum refused to interpret the constitutional question affecting the Bato Bagi land case involving native customary right land in Sarawak which was seized to build the Bakun dam.
Zaki had cited the issue was not properly canvassed before the court to decide, while Malanjum said the lawyers had not fully assisted the court when the question posed was staring at the parties.///–HY
Now the lawyers are blamed for not making the Judges understand the issue to decide one way or another. Isn’t it for the Judges to ask questions so that there can be no doubt as to why the state government was acting against the constitution. If the Judges had acted professionally, they should have taken upon themselves to make sure that they are convinced of which side their decision lies, rather than to appear stupid giving the excuse that they are not smart enough to understand the issues. What is worse when a non-decision allows the government to continue doing what could be wrong as if it was right? Clearly the non-decision is not neutral to the issue; it favours the government when the Court should protect the interest of the weak, the people who are victimized.
#6 by grkumar on Saturday, 10 September 2011 - 7:48 pm
An understanding of the concept and constitutional doctrine of judicial independence is firstly required in order to make any fair or effective erudite commentary on the subject in question here. Respectfully I suggest Abdul Azizz is out of his depth in this regard.
A judge may decide in any way he believes in his wisdom a matter should be dealt with in the discharge of his duties on the facts and issues before him.
The vexed issue of layers not being adequately prepared to answer to questions before the courts is a pressing defect in the skills of Malaysian lawyers. It is not for a judge to correct the defect but a client (plaintiff or defendant ) to sue the lawyer for negligence in such situations. Judges are meant to be impartial and not fill in the gaps resulting form a practitioners impotence, inadequate advocacy or negligence. Its part of the concept and doctrine of judicial independence. A judge is not required to side with one party or the other as this Kit Siang blog suggests.
To use an American example is further illustration of the incompetence and confusion challenging the writer of this article Abdul Azizz. In the US the concept of judicial independence is farcical. Firstly the state is not sovereign in the US. the Supreme Court is. It has the capacity to strike down laws as being unconstitutional or to be unlawful in breach of the legislatures role to make laws. Secondly it is a myth that for a court not to make a decision on a particular matter constitutes an abrogation of their responsibilities or “abdication of their oath of office” (grammatically incorrect use of the word abdication). Their oath of office does not compel them to make any decision to suite the expectations of one party or the other. And as previously stated they are not required to answer questions that remain unanswered or unanswerable by the lawyer who come before them unprepared.
#7 by Jeffrey on Saturday, 10 September 2011 - 8:03 pm
Petaling Street’s traders have titles to their properties and yet their properties ‘kena’ compulsory acquisition – what more Natives whose right is not ownership but a mere licence to use as, customarily done by their forefathers, land deemed owned by the State. One can say the law is to do justice enshrined in Constitution but it’s a question of justice to who??? Do the uneducated, poor, disenfranchised get justice? Most instances it is the rich powerful and politically connected (“Elite”) do so. It is the economy of nature that where there resources much desired (like land, timber, minerals) are getting scarcer n scarcer there will be competition for the. Now that even Elites compete against one another for the scarce resources, is there any hope that in a competition between those who benefit from Bakun Dam project and the Natives, the latter ever have a chance???
#8 by Jeffrey on Saturday, 10 September 2011 - 8:14 pm
It is hard to discourse what’s “justice” but given the fact that we’re subject to the law of nature of survival of the fittest (‘Eat or be Eaten’) than justice, at least between same species, must mean “Live and Let Live” and give Each Man His Due! However as a society are our common citizenry, let alone, elites imbued and internalized with these latter principles? “Cakap” and posturing yes for image/ political capital (eg going to Somalia for humanitarian cause) but really believing in them? Why we can even treat our people the same without regard to race and creed, the ones with honorific datuk titleship and those without ! So how much can one expect for Natives destined perish in term of way of life with onward march of the culture of rapacious self enrichment and ‘everyman or himself’ pervasive nowadays?
#9 by Jeffrey on Saturday, 10 September 2011 - 8:25 pm
Sorry typo error in preceding post – “Why we CAN’T even treat our people the same…”
The flexibility of law & ingenuity o human intelligence/crookedness is that one can interpret it for or against (there re always rules existing to justify whichever contrary position – it basically boils down to who one wants to side, depending on one’s values. If I want to side Natives I’d just say, “yes they don’t have legal titles according to your land laws but their rights to land predate even the making of your laws, and when you make such laws saying that all lands belong to the state without recognizing their antecedent rights to them, then you have actually unjustly colonized and robbed them in accordance to the law of jungle! The constitutional provision tat anyone dispossessed of property must be monetarily compensated is no consolation to Natives as they might for some of the 34 traders of Petaling Street. For the Natives it’s the end to a way of life, with some even, the end to your lie as well (literally).
#10 by Jeffrey on Saturday, 10 September 2011 - 8:36 pm
Ooops – ” the end to their lives as well (literally).”
Professor Abdul Aziz Bari laments that judges duck the challenge of interpreting the Constitution. Put it this way, if any judge is timorous and not bold enough to interpret the Constitution in a manner that upsets vested interests of the powerful and invite strong backlash, and prefers to “duck” the issue, then I would prefer him (as a lesser between two evils) to duck the issue than take it on squarely and make a bold decision for the rich and the powerful than the poor weak and uneducated that are entitled. For then there would be a very bad precedent set for the wrong justice, for guidance to the future for similar cases of such nature.
#11 by tak tahan on Saturday, 10 September 2011 - 8:41 pm
/It is the economy of nature that where there resources much desired (like land, timber, minerals) are getting scarcer n scarcer there will be competition for the. Now that even Elites compete against one another for the scarce resources, is there any hope that in a competition between those who benefit from Bakun Dam project and the Natives, the latter ever have a chance???/ by sage
I hope majority Malays will realise sooner of the above-mentioned by sage that one day their lands and properties would be usurped by the Elites when other resources are getting scarcer.Currently the law we have is the law of jungle.Sage,could you translate into BM for those Malays not fluent in ‘London speaking’ as your amoh is too cheem la.
#12 by Jeffrey on Saturday, 10 September 2011 - 8:48 pm
We condemn DownUnder for historically oppressing their Aborigines and not too long ago their PM playing Deputy Sheriff to US but what about our own backyard treatment of Natives deemed bumiputras by Constitution and our leaders trying to get photoshoot with US president like barnacles attaching to the backs of whales to get the international recognition???
#13 by Loh on Sunday, 11 September 2011 - 4:24 am
Mahathir’s words
9/11 2001
8 September by Mahathir at chedet.co.cc
///1. I had written in this blog that the attack against the New York World Trade Centre and the Pentagon on 9/11 2001 was not by Muslim terrorist. It could have been by other groups.
2. In the Star of Friday 2nd September, a report by AFP, date-lined New York has this to say:
“For some Americans, the deaths of nearly 3000 people was not the scariest thing about 9/11. It was realising who carried out the attack: yes, the American Government.”
3. I believe Arab Muslims are angry enough to sacrifice their lives and become suicide bombers. But they or their handlers do not strike me as capable of planning and strategising such attacks so as to maximise the damage to the enemy.///–Mamakthir
To believe that Arab Muslims were angry enough to sacrifice their lives, on their own initiatives to become suicide bombers is to believe that May 13 was caused by disparity of economic status between races and that the Malays suddenly became angry on that day, 3 days after the 1969 general election, to cause riots. That cannot be. The two different events were organized. The disbelief by one person that Arab Muslims was not capable did not make it the truth.
If a prime minister can agree to the suggestion that the government would inflict harms such as the 9/11 incident to its own country, then it would not be difficult to believe that the same person would destroy the country for his own benefits. That is especially true when Mamakthir himself said that he would migrate if Anwar Ibrahim became Prime Minister. USA did not need to kill its citizens to create an excuse to intervene in the affairs of foreign countries.
///4. More often they would kill other Arabs who may be quite innocent. Frequent targets are mosques at prayer time.
5. But consider the attack on 9/11. The planning must have taken a considerable length of time. The candidates had to learn to fly in tiny aircrafts. Unless they were already airline pilots familiar with big passenger aircraft, their pupil pilot licenses would not be of much help to fly the four aircrafts to their targets which were not an the route of the planes.
6. Planning to hijack four aircrafts simultaneously would require great precision in timing and logistics. One aircraft maybe. But four simultaneously!! I don’t think Arab terrorists from Saudi Arabia can carry out this highly sophisticated operation with such success. ///–Mamakthir
Osama Bin Laden denied I 2001 that 9/11 was his work. But in 2005 after he was more certain about his safety hiding from the Americans he announced that he was responsible for 9/11, and he declared more attacks against the US.
Bill Clinton knew about the plots by Osama bin Laden to attack USA back in 1996. He did not authorize the action ordered by Obama in 2011 which killed Osama.
Osama is the 17th child of an Arab construction tycoon who had 52 children by 10 wives. Osama became a billionaire, and he used his wealth to create Al Qaeda. With money Osama was able to buy talents he needed. What appears to be difficult for Mamakthir is because he could not plan what happened, and Mamakthir considered himself the only Muslim genius in Malaysia.
///7. Then there was the collapse of the two towers hit by the aircrafts. They came down nicely upon themselves without toppling against the other buildings close by. It looks more like planned demolition of buildings than collapse consequent upon being hit by aircrafts.///–Mamakthir
Osama bin Laden must have been surprised himself that the two planes brought the buildings down. That encouraged Al Qaeda more.
The heat from the burning oil and explosion reached such a temperature that it melted the iron bars inside the pillars, and the weight brought the buildings down.
///8. But a third building also collapsed in the same fashion although it was not hit by any aircraft or by the collapsing twin towers. What is the explanation for this untouched building collapsing upon itself and not damaging other buildings nearby? ///– Mamakthir
If the US government planned it, they would certainly not spare a plane to hit the third building! It was the heat caused by the two burning towers which continued to burn going down.
///9. Then there is the total disappearance of the aircraft which hit the Pentagon building. There was no debris of any kind, no broken parts of the aircraft, no black box, and no human bodies flung into the surroundings. Is it possible for an aircraft to vaporise totally after a crash?
10. And the fourth aircraft which was supposed to have crashed in an open field. Again no sign of any debris. No big crater. Did it vaporise into nothingness also. Did the innocent passengers also vaporise? ///–Mamakthir
The statements did not correspond to fact.
///11. The American press is great at reporting incidents. They will give full coverage, with great pictures sketches and detailed descriptions. For months they would publish stories with revealing photographs. They would interview the relatives of the passengers who died in the crashes. But the American press was strangely silent about 9/11.///–Mamakthir
If Mamakthir did not tune to CNN it did not mean that nothing got reported in CNN about the 9/11. He can still claim that nothing was reported against the fact. For example, Mamakthir said in is memoire that he did not know where in India his grandfather came from but he did visit Calicut, Kerela, India while PM and saw the banners bearing the words ‘welcome home our son’
///12. It is now the 10th anniversary of 9/11. Bush lied about Saddam’s weapons of mass destruction. As a result hundreds of thousands of Iraqis, Afghans and a few thousand of young American soldiers died, thousands more are wounded, maimed for life, suffering mental breakdowns. Two countries have been devastated and fratricidal wars have become endemic. And still no democracy.///–Mamakthir
If Bush had easily sent army into Iraq by ‘lying’, USA did not have to organize 9/11 just to go into Afghanistan!
///13. This is the legacy of George W. Bush. If they can lie so as to kill Iraqis, Afghans and American soldiers, it is not unthinkable for Bush & Co. to lie about who was responsible for 9/11. Human lives do not seem to mean much to Bush!!///–Mamakthir
USA no doubt wasted a lot of money to finish off Saddam Hussein so that new leaders in Iraq had the chance to enjoy power. USA attempted social engineering in a robust manner, in another country. Oil production in Iraq has returned. So the world can afford disruption of oil production in Libya.
#14 by Jeffrey on Sunday, 11 September 2011 - 5:54 am
///The law expert said the right to property is guaranteed by the constitution under Article 13 of the supreme law of the nation (Constitution)/// – Professor Abdul Aziz Bari.
It is easy to duck addressing Question whether the constitutionally guaranteed right to property has been violated by Taib’s Sarawak Land Code (relating to acquisition of native land). There are 2 ways: (1) argue that Natives Customary Right (NCR) only vest their hereditary rights to USE under licence but NOT OWN own the lands that are deemed owned by the State, thereore the question of depriving them proprietary rights within contemplation of Constitution does not arise; and (2) Going by Majority principle, majority of Natives (including those represented by lawyer Baru Bian) being tired litigants (exhausted by protracted court process/appeals over 10 years ) have already accepted, in principle, compensation later increased by the arbitrator.
#15 by Jeffrey on Sunday, 11 September 2011 - 6:19 am
///In any case, one wonders why the two did not make up their mind? Is it a case of just wanting to let go this one and later the court can take a more restrictive approach?/// -Professor Abdul Aziz Bari.
If by “restrictive” you mean the later court in later cases can find their conscience, restrict Taib’s law by interpreting Constitution in favour of Natives, you’re probably right.
Although all 3 rejected Natives’ claim it for different reasons – 1 of them unequivocally that extinguishment of NCR was constitutional, the other 2 (retiring) prefer to base it on argument (2) of preceding post so that constitutional issue need not be directly addressed. For there is a dilemma here: if one addresses it in favour of Taib’s extinguishment of NCR without contravening Constitution, Natives will be condemned as to future, bound by this apex court’s decision & its rationale. Conscience pricks & legacy in retirement sullied. On the other hand to rule otherwise -that Constitution is contavened and strike down as invalid the new amendment extinguishing NCR would mean all the Natives in Sarawak can stall Bakun Dam in definitely after so much of public monies dumped in, so many politicians including ex politicians upset and their cronies who have vested interests in Bakun & every other Dam project in arms! Imagine how many corporations local & foreign have investment interest in Sarawak, with their forcast profit/revenues depended upon by financiers to give loans made not viable if costs escalate due to initial projection based on cheap power from these dams, signed with the State, thrown out! What about the timber cronies and others with or hoping for land concessions to denude our Rain forests for financial gain? The Backlash is fierce, BN’s fixed deposit position in Sarawak will be at stake for coming GE! Deciding not to decide on Contitutional issue now, pass the buck to future Courts, is, from this angle, a practical compromise.
#16 by Bigjoe on Sunday, 11 September 2011 - 1:07 pm
What people don’t understand is that if in this country, the top judges are capable of irresponsibility when they are suppose to be immune from executive or legislative, then the rest of the system of govt is basically filled with much much worst problems. If these judges are capable of trashy behaviour, the rest of our system is simply rotten in unimaginable ways..
What these judges prove is that the UMNO/BN created Malaysian govt that we have today is just full of trash that need to be cleaned out.
#17 by limkamput on Sunday, 11 September 2011 - 2:58 pm
Sage, one question for you: Are you saying all decisions are based on who interests the court would find more expedient to protect than based on the purpose, the intend and the letter of the laws and constitution?
#18 by Jeffrey on Sunday, 11 September 2011 - 3:39 pm
When judge decide a dispute between 2 private parties he should decide strictly based on the law as applied to the facts relating to the dispute. He should not be bias for or against any party. However when a judge esp. in an apex court is called upon to decide on a constitutional issue, it is not a dispute that affects only the two immediate disputing parties. It affects whole communities, present and future cases of these sorts. So it is not just the law as expressed in words, which words are opened to interpretation, this way or that way. It includes intent of law & constitution that requires the Judge to also factor in the bigger picture of how whole communities, public & economic interest and sometimes even interest of the nation are affected, taking into account the values that public or communities hold dear. Even on values what is desired may be conflicting – the desire for economic modern development in Sarawak may be conflict with NCR rights.
#19 by Jeffrey on Sunday, 11 September 2011 - 3:40 pm
It falls on a judge then to weigh and balance conflicting values and imperatives and decide which one takes precedence in given a situation. In weighing he has to look at proportionality, here in case above, the judges seem to ostensibly say the Natives have already been awarded given adequate monetary compensation that majority (not minority) are happy with – so why should minority on balance be entitled to block something that may affect Sarawak economic position? Of course one may say that the judges are beholden to and are afraid to upset powers that be. That may be speculated but cannot be alleged irresponsibly without proof (as in case of judge caught in going on holiday in NZ!) Besides 2 of judges here are ending their contract of service without renewal. It may be assumed that they don’t have to go all out of the way to ingratiate the political bosses. Their pensions and benefits are constitutionally protected. Maybe that’s why they’re not deciding on the Constitutional issue of right of property leaving it to future courts.
#20 by Loh on Sunday, 11 September 2011 - 3:54 pm
By extension, the High Court judge must be correct in choosing the right precedent to decide that Nizar was wrong and the Sultan of Perak was right. But then the Judge should have left the decision on the big picture to the Federal Court!
#21 by Loh on Monday, 12 September 2011 - 2:30 am
///9. Then there is the total disappearance of the aircraft which hit the Pentagon building. There was no debris of any kind, no broken parts of the aircraft, no black box, and no human bodies flung into the surroundings. Is it possible for an aircraft to vaporise totally after a crash?
10. And the fourth aircraft which was supposed to have crashed in an open field. Again no sign of any debris. No big crater. Did it vaporise into nothingness also. Did the innocent passengers also vaporise? ///–Mamakthir
xxxxxxx
Near Shanksville, PA
Sunday, September 11, 2011, http://blog.limkitsiang.com/2011/09/10/constitutional-question-judges-let-natives-down/#more-15548
A ceremony on the tenth anniversary of the crash of Flight 93 on 9/11 occurred earlier today near Shanksville, Pennsylvania. A national memorial has been constructed at the site and was dedicated yesterday in a ceremony featuring remarks by former Presidents Clinton and Bush
The United Airlines plane was carrying 33 passengers and 7 crew members when it went down in a field about an hour southeast of Pittsburgh. Those on board are credited with preventing the hijackers from flying the plane into a Washington, DC-area building like the U.S. Capitol.
Washington, DC
Sunday, September 11, 2011
This morning, the Pentagon held a ceremony to honor those killed on 9/11. Vice President Joe Biden, Defense Secretary Leon Panetta and Joints Chief of Staff Chairman Admiral Mike Mullen spoke about those who lost their lives 10 years ago and the role the military is taking to fight the war against terrorism.
The events in Arlington, VA, just outside Washington, DC, killed 184 people on the morning of September 11, 2001. An hour after the first hijacked plane hit the World Trade Center in New York City, five hijackers flew American Airlines flight 77, which took off from Dulles International airport in Northern Virginia, into the Pentagon. At the time the plane made contact with the building, it was traveling at 530 miles per hour and carrying 10,000 gallons of fuel.
The damaged sections of the massive building were reconstructed, and the Pentagon memorial, which consists of a courtyard with benches for each person killed at the Pentagon, was dedicated on the 2008 anniversary of the attacks.
xxxxxx
With the flight numbers and name of airlines, they were certainly not UFOs as mamakthir wanted people to believe.