Archive for category Judiciary
Democracy only works when people claim it as their own
Posted by Kit in 1Malaysia, Corruption, Judiciary, nation building, Parliament on Friday, 24 September 2010
People first, democracy now!
By P Ramakrishnan
In a democracy worth its name, it’s the people who come first. The government exists for them and not the other way around as is happening now. We are made to believe that the people are there to do the government’s bidding. The government actually tells you that.
You vote for my man on Sunday, you will get a cheque on Monday. That’s what they told the voters in Ulu Selangor. In Sibu they told the voters, “You elect my man, I will pay for the flood mitigation project” – otherwise you can drown in the flood for all I care!
In other words, you will be rewarded if you serve the ruler; otherwise you will be punished. They don’t govern the country any more – they rule over you; they lord over you.
Is this what democracy is all about? Read the rest of this entry »
Judiciary fails to protect minority rights: Sri Ram
by Hazlan Zakaria
Malaysiakini
Sep 16, 10
Former Federal Court judge Gopal Sri Ram said today that the judiciary has failed in its duty to defend minority rights.
Since the executive branch is elected by the majority, and as such it represents the rights of the majority, Sri Ram argued that the judicial branch has the duty to protect the rights of the minority.
“It is the judiciary which must fulfill this task,” said the former judge in his speech at the National Conference on Integrity in Kuala Lumpur today.
Sri Ram told the 350-strong audience that if the question was asked on whether the judiciary has performed its duty, the answer he said would be an “emphatic no!”.
According to him, this was because the judiciary has become so “executive-minded” that the judges have become creatures of the government. Read the rest of this entry »
Denying Anwar Natural Justice
Posted by Kit in Anwar Ibrahim, Court, Dr. Chen Man Hin, Judiciary, Najib Razak on Tuesday, 10 August 2010
By Dr Chen Man Hin
IT IS NATURAL JUSTICE FOR ANWAR IBRAHIM TO HAVE ACCESS TO ALL EVIDENCE IN SODOMY 2 TRIAL
Denial of clinical evidence from Anwar Ibrahim to defend himself to face a charge of sodomy is a denial of natural justice for Anwar. Before this, he was also denied of evidence several times on previous occasions in the course of the trial.
In any trial, any one charged with a crime, surely has a right to ask his accuser (the prosecution) to produce the evidence. To deny the accused of the so called charge is surely a denial of natural justice for the accused.
This is substantiated by a clause in the INTERNATIONAL COVENANT IN CIVIL AND POLITICAL RIGHTS passed by the United Nations, ‘which guarantees the accused the right to have adequate time and facilities to the preparation of defence. Article 14 (3) (6) of the Covenant guarantees that legal representation of the defendant should have access to all relevant material and evidence.’
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Court orders water documents revealed
Posted by Kit in Good Governance, Judiciary on Monday, 28 June 2010
Malaysiakini
Hafiz Yatim
Jun 28, 10
The federal government has seven days to disclose the contents of the audit report and water concession agreement entered between it, the Selangor government and Syarikat Bekalan Air Selangor (Syabas).
This follows a landmark ruling at the High Court today allowing the documents – which were classified by the government as being under the Official Secrets Act (OSA) – to be made public.
The decision was made by judicial commissioner Hadhariah Syed Ismail, who ruled the government’s refusal to disclose the reports did not consider the expectation of members of the public who are adversely affected by the decision. Read the rest of this entry »
Karpal acquitted of sedition charge – defence not called
Tweets
Prosecutor failed to establish prima facie sedition case against Karpal. He’s free! http://tweetphoto.com/26623554
Friday, June 11, 2010 3:25 PM
Great news recd in KB! Sedition charge agnst DAP National Chairman Karpal Singh dismissed by KL High Court – no defence called.
Friday, June 11, 2010 3:25 PM
Karpal acquitted – AG Gani Patail shd b censured in Parliament n Ct of public opinion 4bowing 2political pressures 2charge K 4sedition #fb
Friday, June 11, 2010 4:03 PM Read the rest of this entry »
In sympathy with Matthias Chang
Posted by Kit in Judiciary, Mahathir, Martin Jalleh on Wednesday, 7 April 2010
By Martin Jalleh
(Martin Jalleh (MJ) responds to a letter purportedly written by Matthias Chang (MC) before he chose to go to jail after being charged for contempt of court by the Kuala Lumpur High Court.)
MC: Message from Matthias Chang. To My Dearest Friends and Colleagues
MJ: Dear Matthias, I was shocked that you have been charged for contempt of court. You must in synergy with your former boss who was most contemptuous of the courts!
MC: I have fought against injustice throughout my life and as a practising lawyer
MJ: Perhaps it would be more accurate to say throughout your pre-political-secretary life? The rest of your life you have been faithfully fighting for your former Master, Mahathir.
MC: …upholding justice when there are abuses by the judiciary
Read the rest of this entry »
Was Anwar’s sacking 11 years ago lawful?
Posted by Kit in Anwar Ibrahim, Judiciary, NH Chan on Friday, 12 March 2010
By NH Chan
MARCH 12 — On Tuesday March 9, 2010 the Sun reports:
Federal Court: Anwar’s sacking from cabinet lawful
Putrajaya: The sacking of Datuk Seri Anwar Ibrahim as deputy prime minister and finance minister 11 years ago was lawful, the Federal Court ruled yesterday.
Court of Appeal President Tan Sri Alauddin Mohd Sheriff and Federal Court judges Datuk Wira Mohd Ghazali Mohd Yusof and Datul Abdull Hamid Embong unanimously dismissed Anwar’s final appeal for a declaration that his dismissal from his cabinet posts in September 2, 1998 was unconstitutional.
Alauddin held that the then prime minister, Tun Dr Mahathir Mohamad, had the authority under the Federal Constitution to sack his cabinet minister.
He said, the King, as a constitutional monarch, was required to act in accordance with the advice of the prime minister.
Read the rest of this entry »
Judges Can Fly – in the face of Rule 137 of the Federal Court Rules! (Part 1)
By NH Chan
A thorough and critical consideration of the Federal Court’s inconsistent and dishonest approach to Rule 137 of the Rules of the Federal Court 1995 in 2 parts. This part considers the recent Federal Court decision dismissing Dato’ Seri Anwar Ibrahim’s application to review a previous Federal Court decision dismissing his application for disclosure of documents for his second sodomy trial.
Devastating and shocking news.
The headline of the online news portal Malaysiakini declared:
Anwar fails to get Federal Court to review its decision
Feb 25, 2010
Read the rest of this entry »
Judges Can Fly – in the face of Rule 137 of the Federal Court Rules! (Part 2)
By NH Chan
A thorough and critical consideration of the Federal Court’s inconsistent and dishonest approach to Rule 137 of the Rules of the Federal Court 1995 as it relates to section 51 and 51A of the Criminal Procedure Code and the Federal Court decisions in Adorna Properties v Kobchai Sosothikul [2006] 1 MLJ 417 and Asean Security Paper Mills Sdn Bhd v Mitsui Sumitomo Insurance (Malaysia) Bhd [2008] 5 AMR 377. This is the concluding part.
The two misguided decisions are Adorna Properties v Kobchai Sosothikul [2006] 1 MLJ 417 and Asean Security Paper Mills Sdn Bhd v Mitsui Sumitomo Insurance (Malaysia) Bhd [2008] 5 AMR 377. Practicing lawyers will tell you that not too long ago the Federal Court have been exercising their inherent powers to right a wrong which is to prevent injustice as envisaged in Rule 137.
In the case of Adorna Properties Sdn Bhd v Kobchai Sosothikul [2006] 1 MLJ 417 (PS Gill and Rahmah Hussein FCJJ and Richard Malanjum JCA, as he was then) Mr. Kobchai Sosothikul – who was substituted for his late mother Mrs. Boonsom Boonyanit – applied under rule 137 of the Federal Court Rules 1955 to review the Federal Court’s decision in Adorna Properties v Boonsom Boonyanit. PS Gill FCJ (who delivered the judgment of the court) dismissed the application for review. He said:
Read the rest of this entry »
Charge N H Chan for contempt or resign, CJ?
Posted by Kit in Judiciary, Martin Jalleh on Wednesday, 10 March 2010
By Martin Jalleh
The integrity of the judiciary has been badly mauled by a legal lion who does not mince his words no matter how high or mighty a judge thinks he is. He has called a spade a spade and certain members of the judiciary an “incompetent” and even an “idiotic” bunch!
All the Chief Justice (CJ) and the judges in the Palace of Justice have managed to do is remain mum, mute and mumble amongst themselves as N H Chan methodically makes them out for who they really are and the mockery they have made of the law!
The respected, renowned and retired Justice N H Chan is very frustrated, fed-up and furious at how the judiciary which he had served so faithfully has been reduced to a farce run by those who are legal and intellectual frauds or what he has called “imposters”!
With each passing compromised judgment N H Chan unhesitatingly hits out at judges with an increasingly sharper sting. He leaves no stone unturned, no errant judge uncovered. They can “no longer mask their hyperbole judgments with unintelligible garbage”.
“Fools on the bench”
Read the rest of this entry »
Five myopic judges in Federal Court
Posted by Kit in Constitution, Judiciary, Perak on Monday, 22 February 2010
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.
Read the rest of this entry »
Muhyiddin is among the most unqualified persons in the Najib Cabinet to talk about the doctrine of separation of powers
Posted by Kit in Judiciary, Muhyiddin Yassin, Parliament on Saturday, 20 February 2010
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.
Read the rest of this entry »
Justice is done in by the Federal Court
Posted by Kit in Constitution, Court, Judiciary, Martin Jalleh, Perak on Wednesday, 10 February 2010
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.
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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 »
PAC proposal to investigate CKC for cbt – testimony of MACC impotence/failure
Posted by Kit in Corruption, Judiciary, Parliament, PKFZ 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, Parliament, PKFZ 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.
Read the rest of this entry »
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:
Read the rest of this entry »
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.
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