Archive for category Court
Malaysia itself, not the opposition leader, is in the dock
Posted by Kit in Anwar Ibrahim, Court on Tuesday, 2 February 2010
Anwar’s Second Sodomy Trial | The Wall Street Journal
Malaysia itself, not the opposition leader, is in the dock.
More than a decade after he was beaten, tried and jailed, opposition leader Anwar Ibrahim will once again face a Kuala Lumpur court today on charges of sodomy. The accusations are highly dubious and raise a serious question: Is this moderate Muslim democracy becoming a nation with no real rule of law?
The circumstances surrounding Mr. Anwar’s prosecution are suspiciously familiar to most Malaysians. In 1998, he was arrested as he was mounting serious arguments against the increasingly erratic government of United Malays National Organization chief Mahathir Mohamed. On a nearby page, Mr. Anwar’s former aide Munawar Anees describes being tortured and forced to confess to sodomy, a criminal offense in Malaysia. Mr. Anwar was convicted of sodomy and abuse of power and served six years in jail before the sodomy ruling was overturned in 2004. He was allowed to run for political office again in 2008, which he did, in earnest.
Mr. Anwar was arrested again in July 2008, a day after participating in his first nationally televised debate in more than a decade—an event that showcased his political skills and highlighted the growing momentum behind his three-party opposition coalition. He was accused of sodomy with a 23-year-old former aide, Saiful Bukhari Azlan. Mr. Saiful was taken into protective police custody after he made his allegation and has since rarely been seen in public. The government denies any political motivation for the charges. Mr. Saiful himself has not been charged.
As in 1998, the evidence in this case is thin at best. The police made a show of arresting Mr. Anwar, put him in jail for a night, and forced him to undergo a humiliating medical “examination.” The government then passed a bill in parliament to give the police expanded powers to collect DNA in criminal cases. Mr. Anwar’s lawyers claim they have a hospital report that shows no sodomy occurred.
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A commentary on Nazri’s offer of a way out
By N.H. Chan
Malaysian Insider
Jan 20 2010
This is what the Minister in the Prime Minister’s Department Datuk Seri Nazri Aziz said (The Star, Saturday, Jan 16, 2010). Nazri, who was voicing his personal opinion over the “Allah” issue, noted that Sabahans and Sarawakians could still conduct Mass and give sermons in Bahasa Malaysia but should not use the word “Allah” while in the peninsula.
“It is all right to hold Mass in Bahasa Malaysia but do not use the word ‘Allah’. They must use Tuhan as in the national language,” he said in an interview.
Although he agreed that the word “Allah” had been long used in Christianity way before Islam existed, Nazri said: “That’s why I say it is all right in Sabah and Sarawak but culturally, you cannot apply it in a place where Allah has always been Islam’s God.”
But where is it said anywhere – certainly it is not in the Koran – that Christians cannot apply Allah in a place where Allah has always been Islam’s God. Read the rest of this entry »
AG Gani Patail should initiate contempt proceedings against Nazri while MCA, Gerakan, MIC, Sabah/ Sarawak BN and other Umno Ministers should repudiate Nazri’s stand in Cabinet tomorrow that it is too late for inter-religious dialogue to resolve the “Allah” controversy
I was completely astounded and outraged by de factor Law Minister, Datuk Seri Nazri Aziz’ statement yesterday that it is too late for dialogue to resolve the “Allah” controversy, which had sparked a spate of arson and vandalism against churches, surau and a Sikh temple since the beginning of the year.
Nazri reiterated that it was not the fault of the government but that of the Archbishop of the Roman Catholic Church, Kuala Lumpur, Reverend Tan Sri Murphy Pakiam who had brought the matter to court.
If anybody is to be blamed for the Herald litigation, it is the government which had allowed the Home Ministry to violate two decades of religious equilibrium on the issue with its ban in 2007 on the use of the word “Allah” in the Catholic weekly, forcing on the Roman Catholic church the final remedy and recourse of the courts.
But it is what Nazri said about the Kuala Lumpur High Court judge Datuk Lau Bee Lan and her judgment which completely floored rational and reasonable Malaysians, as no Law Minister or a de facto one had done more than Nazri to attack the independence, impartiality, integrity and professionalism of a judge when his first task should be Read the rest of this entry »
All Cabinet Ministers should study the 57-page judgment of KL High Court judge Lau Bee Lan to decide whether Home Ministry should withdraw the appeal on the “Allah” controversy and focus instead on inter-religious dialogue to resolve the issue
Posted by Kit in Court, Muhyiddin Yassin, Religion on Monday, 18 January 2010
The Deputy Prime Minister, Tan Sri Muhyiddin Yassin should not be so hasty and even trigger-happy to declare that the government will not withdraw its appeal against the Kuala Lumpur High Court judgment allowing the Catholic Church to use the word “Allah” in the Bahasa Malaysia section of its newspapers, Herald.
By doing so, Muhyiddin is unfairly and undemocratically denying the rights of Cabinet Ministers from considering whether the Home Ministry should withdraw its appeal against the Kuala Lumpur High Court judgment on the “Allah” controversy to demonstrate the government’s seriousness and commitment to resolve the issue through inter-religious dialogue.
I had in Ipoh yesterday made the proposal that the government withdraw the appeal and to focus on resolving the controversy through inter-religious dialogue, as certain Umno Ministers and leaders had given the impression that when they speak about inter-religious dialogue, they were not talking about an open, full and free discussion and inter-reaction among the different religions to reach a lasting and satisfactory solution but using the inter-religious dialogue to achieve a pre-determined outcome – in the case of the “Allah” controversy, to achieve the same objective as the 2007 Home Ministry ban on the Catholic weekly Herald from using the word “Allah”.
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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. Read the rest of this entry »
Pornthip did not leak info
Posted by Kit in Court, Teoh Beng Hock, Twitter on Friday, 15 January 2010
Inquest adjourned 4half hour 4karpal 2submit precedents on law of contempt
01/15/2010 11:23 AM
Razak apologised but Karpal said apology only go to mitigation n court must commit Razak 4contempt Karpal said Razak’s apology insincere
01/15/2010 10:58 AM
Karpal said in insulting another counsel n all Malaysians in wheelchair Razak had committed contempt in the face of the court
01/15/2010 10:49 AM
Blowup in ct over Macc counsel Razak’s offensive insult agnst Karpal when saying: I can sit down but Karpal cannot stand up.
01/15/2010 10:46 AM
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MACC applied to expunge torture testimony from TBH Inquest at PJ High Court
Posted by Kit in Court, Teoh Beng Hock, Twitter on Thursday, 10 September 2009
01:16 PM
Stay of execution not granted parties instructed 2proceed
01:14 PM
Lawyers argue whether lawful 4stay of execution in revisionary applns gobind objects n says Thai pathologist Porntip testifying Monday
01:11 PM
High ct judge upheld Coroner’s ruling as there is nothing erroneus. MACC lawyer applied 4stay of decision
12:53 PM
Gobind-My client TBH is dead He is not here 2give me instructions We want 2produce testimony 2submit that MACC witnesses cannot be believed
12:45 PM
in any physical assault of persons in MACCHqrs 14th floor
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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 »
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.
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Do take the trouble to understand before you find fault with the judges of the Court of Appeal
by N H Chan
Before you go about judging the judges of the Court of Appeal on their five minute oral decision which they handed down on Friday, May 22, 2009, please bear in mind the wise words of the most liberal of American judges, judge Learned Hand who once wrote – The Spirit of Liberty, p 110:
… while it is proper that the people should find fault when the judges fail, it is only reasonable that they should recognise the difficulties. … Let them be severely brought to book, when they go wrong, but by those who will take the trouble to understand.
I shall now try to help you take the trouble to understand the oral findings of the Court of Appeal. First of all we will look at what the New Straits Times, Saturday. May 23, 2009 has to say:
PUTRAJAYA. … In allowing the appeal by Datuk Seri Zambry Abdul Kadir that he was constitutionally appointed as menteri besar by the sultan on Feb 6, Court of Appeal judge Datuk Md Raus Sharif said there was no clear provision in the state Constitution that a vote of no confidence against Nizar must be taken in the assembly.
5-minute finding (not judgment) of Ct of Appeal shot-gun session declaring Zambry lawful Perak MB – hydra-headed monster claims another victim
Posted by Kit in Constitution, Court, Judiciary, Najib Razak, Perak on Friday, 22 May 2009
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.
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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’?”: Read the rest of this entry »
Najib improperly intefering with Court of Appeal hearing on Nizar vs Zambry case
Posted by Kit in Court, Judiciary, Najib Razak, Perak on Saturday, 16 May 2009
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?
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Even when you do the right thing, it is still wrong
By NHChan
The other day a friend asked me this question: How is it that some of our judges do not seem to know what is the right thing to do, when all of us know what is right or wrong? I was flabbergasted by the question. It was such a simple question, yet I couldn’t give her a direct answer immediately. I just looked at her and shrugged. It was only much later when I got home that I remember what I have read (you joined the Inns of Court to read law, not study law) as a law student some half a century ago – the case of Dudley and Stephens.
We know it is wrong to kill a human being for food in order to survive although necessity is a defence to the charge of murder.
I shall recount the saga of Dudley and Stephens from Lord Denning’s at Next in the Law, Butterworths, London, 1982, pp 48, 49:
Read the rest of this entry »
The Texture Of Justice
By Malik Imtiaz
MAY 12 – It was to be expected. As news of the decision of the High Court in the matter of Nizar v Zambry filtered out, many were quick to give thanks and express encouragement for what they perceived as a courageous judgment.
Some even expressed the hope that the judiciary was recovering its independence.
The judgment did, after all, run counter to the entrenched positions of the Prime Minister, who was the Perak Umno liaison chief at the time power was seized in the state, the Barisan Nasional leadership and the Federal Government they have constituted, and His Royal Highness the Sultan of Perak.
As has been the case when other seemingly “courageous” or “independent” judgments were handed down by the courts had led to such expressions of encouragement, there were those who made the point that the judiciary was praised only when it gave decisions against Umno or the Barisan, and the governments they constitute.
They ask why it is the courts are “kangaroo courts” when they decide in favour of the Barisan but not when they hand down judgments against it.
In so asking, they suggest that criticism against the Judiciary and the Federal Government in this regard is unfair and self-serving as the judicial process is capable of producing judgments that run either way. To them, the good must be taken with the bad.
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Perak in limbo with no Mentri Besar – PR lawyers to set aside Court of Appeal single-judge “stay” decision
Datuk Zambry Abdul Kadir has likened himself to Mahatma Gandhi and Nelson Mandela, causing all-round derision, outrage and revulsion.
If Zambry dreams of being a Gandhi, he would not want to be an illegitimate and unlawlful Mentri Besar even for a second.
He would not lay claim to be the Perak Mentri Besar as after the Nizar vs Zambry judgment of Justice Abdul Aziz Abdul Rahim yesterday, he is doubly illegitimate as the Perak Mentri Besar.
Zambry went against everything Gandhi stood for in announcing that he would again “gate-crash” the Perak State Secretariat building tomorrow to illegitimately re-occupy the office of Mentri Besar!
Zambry was defaming the memory of Gandhi in suggesting that the great Indian moralist would have approved Zambry for being a doubly illegitimate MB.
The most astounding single-judge Court of Appeal decision to grant stay of the Abdul Aziz declaration does not in any way salvage Zambry’s position as a doubly illegitimate MB.
Abdul Aziz declared Zambry as an unlawful and illegitimate MB and Nizar the lawful and legitimate MB.
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My first twittering day
Posted by Kit in Constitution, Court, Perak on Monday, 11 May 2009
This is the twitter updates from KL High Court in Nizar vs Zambry case. From 3 – 4pm
# great judgment nizar will seek audience with sultan for dissolution
# judge rejects stay appln
# zambry counsel applying for stay of declaration
# judge declares nizar lawful mb
# judge – mb can only be dismissed by no confidence motion in assembly
# judge – assembly never had no confidence motion, material
# judge – mb can request dissolution without having lost majoritya
# judge upholds stephen ningkan judgment
# judge rejects ag’s ‘deeming’ argument – no ambiguity in constitution
# judge says perak constitution does not contemplate mb dismissal by sultan
# judge says once mb appointed by sultan, mb is answerable to assembly
# kl high court judge delivering judgment so far so good keep fingers crossed
# Will try to tweet the High Court decision later using my handphone. (1pm)
5.30 pm – Deborah Loh of TheNutGraph has given the following report of the historic High Court judgment by Justice Datuk Abdul Aziz Abdul Rahim: – Read the rest of this entry »
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