Archive for category Judiciary
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 »
Did Kit Siang and Karpal commit sedition?
Posted by Kit in DAP, Judiciary, Law & Order, NH Chan on Wednesday, 10 June 2009
By NHChan
Prelude – please read it before reading the article
I write this article so as to apprise the people who, in the mind of the general public, have taken the law into their own hands through the harassment of law abiding citizens of this country with the threat of using the Sedition Act 1948 on them. They should not have done it without first taking expert legal advice on the technical and difficult law of sedition under the Act.
After you have read this article, I am sure you will agree with me that the law of sedition is not easy for a layman to understand. Even lawyers and judges have found great difficulty in understanding it – let alone an uninitiated policeman. If the police are not careful, one of these days they will find themselves at the receiving end of a suit for malicious prosecution, false arrest or whatever the victims of their harassment would throw at them.
I hope you will bear with me if this time I am not able to explain difficult law in simple language as much as I would like to. It is at a time like this that I really appreciate the great ability of the late Lord Denning who was so adept at explaining difficult law to us ordinary folk. 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.
Read the rest of this entry »
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.
Read the rest of this entry »
Abdul Aziz judgment on Nizar case
Today the Court of Appeal at the Palace of Justice, Putrajaya is hearing the appeal against the landmark judgment of Justice Datuk Abdul Aziz Abdul Rahim in the Nizar vs Zambry case delivered last Monday, 11th May 2009 declaring Nizar as the lawful Perak Mentri Besar.
Nizar is not getting a five-member Court of Appeal panel. The three judges hearing Nizar’s application to discharge Zambry’s “stay order” obtained by a single-judge Court of Appeal within 24 hours of the historic judgment and Zambry’s appeal against the Kuala Lumpur High Court judgment are justices Md Raus Sharif, Zainun Ali and Ahmad Maarop.
As I said in my tweet two hours ago:
“Parties agree that appeal proper b heard 1st and if at the end of hear’g ct cant give decision then discharge of stay will have 2 b heard.”
While we wait for the outcome from the Court of Appeal, the landmark Abdul Aziz judgment which illuminates the complicated terrain thrown up by the Perak constitutional crisis is worth reading (here).
Read the rest of this entry »
Do you know why the Federal Court is not giving a written judgment in the Perak debacle?
by N H Chan
The answer can be simply put. It is because Article 72 (1) of the Federal Constitution is written in unambiguous language which even a child can understand. As I have said before in an earlier article that the words, “The validity of any proceedings in the Legislative Assembly of any State shall not be questioned in any court”, mean what they say. Nothing can be plainer than that. No one in his right senses would try to interpret the obvious meaning of the words in Article 72, unless he wants to say the words mean something else. But the Federal Court was not prepared to do that. And the reason is because they do not want to be known as Humpty Dumpty judges.
Remember Humpty Dumpty in Lewis Carrol‘s, Through the looking Glass?:
“But ‘glory’ doesn’t mean ‘a nice knock-down argument’,” Alice objected.
“When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean – neither more nor less.”
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?
Read the rest of this entry »
Can Malaysians expect justice in cases involving top Umno leaders when there is an Umno Chief Justice, Tan Sri Zaki Azmi?
The question bugging Malaysians in the past 20 months have finally come to the very fore – whether Malaysians can expect justice in cases involving top Umno leaders when the Chief Justice, Tan Sri Zaki Azmi had been a long-time Umno lawyer and stalwart?
When Zaki was appointed directly as Federal Court judge in September 2007, it is open secret that he was headed for what turned out to be a quintuple jump as Chief Justice in a matter of 13 months.
Both inside and outside Parliament, the propriety of Zaki’s appointment as Chief Justice and how it could help in restoring national and international confidence in the independence, impartiality and integrity of the judiciary was raised – with no attempt by the Prime Minister of-the-day to give proper and acceptable answers.
Read the rest of this entry »
The Lesson From Perak
Posted by Kit in Bakri Musa, Constitution, Judiciary, Perak, Police on Monday, 11 May 2009
by M. Bakri Musa
The current political paralysis in Perak reflects the major failures of our key institutions. It is a total breakdown at the palace, the legislature, and the permanent establishment. It also exposes the glaring inadequacies of the judicial system which has yet to adjudicate this critical and urgent matter of state.
It is not however, the failure of the people, as some pundits have implied by quoting the old adage that we deserve the government we get. It is the voters’ prerogative whether to grant the incumbent party a stunning victory, humble it with an unstable slim majority, or even throw it into the ranks of the opposition. Canada and Italy have a long history of minority governments, and they have managed well.
A mark of a mature democracy, or any system for that matter, is the transfer of power from one entity to another smoothly and predictably. Perak is a spectacular failure; it is also a preview for Malaysia. Read the rest of this entry »
N.H. Chan: An inconvenient judge
Posted by Kit in Constitution, Court, Judiciary, Perak on Thursday, 30 April 2009
by Debra Chong | The Malaysian Insider
IPOH, April 30 — Chan Nyarn Hoi lives in a modest two-storey semi-detached house in a quiet lane near the state stadium in Perak with his wife, a dog and seven large Japanese carp.
At 74 years old and with ruddy smooth cheeks under a full head of snowy white hair, few would connect him to the acerbic, no-nonsense former judge Datuk N.H. Chan, who has in the last couple of months done the unthinkable: fire away missives at judges who have trampled on the Federal Constitution in deciding issues related to the power grab in Perak. His lengthy articles have reminded Malaysians of a time gone by when towering individuals sat on the Bench and simplified the Perak constitutional crisis for the common man.
Still seething over the events that transpired in Perak and decisions of the apex court, he says that if Malaysians are upset with the state of the judiciary and think that the present crop of judges are not up to the mark, they should exercise the power of their vote to change the state of affairs in the country.
Born in Ipoh on March 27, 1935, Chan was admitted to the Bar in 1961. He was a lawyer for almost two decades before becoming a High Court judge and moving to Kuala Lumpur.
He was among the first batch of High Court judges to be elevated to the Court of Appeal, set up in 1994 to act as an intermediate court between the High Court and the apex court.
Read the rest of this entry »
Zambry’s May 7 Perak Assembly meeting – call it off as it is against Najib’s public position
Posted by Kit in Constitution, Judiciary, Najib Razak, Perak on Sunday, 26 April 2009
The usurper Perak Mentri Besar Datuk Seri Dr. Zambry Abd Kadir should call off the May 7 Perak State Assembly meeting as it is improperly convened against the Prime Minister, Datuk Seri Najib Razak’s public stand that the Perak State Assembly cannot meet until the court has ruled that the Barisan Nasional is the legal government in Perak.
This was the position of Najib, who was then the Deputy Prime Minister, Perak UMNO Chairman and who personally orchestrated the undemocratic, unethical, illegal and unconstitutional power grab in Perak resulting in the three-month political and constitutional stalemate producing two Mentris Besar and even two secretaries to the Perak State Assembly!
This is the Sunday Star report of March 1, 2009, headlined “Perak assembly cannot meet until court decides, says DPM” on Najib’s response to the convening of a State Assembly meeting by the Perak Speaker, V. Sivakumar which eventually became the historic “Tree Perak State Assembly”: Read the rest of this entry »
When a judge is plainly wrong
Posted by Kit in Constitution, Judiciary on Wednesday, 22 April 2009
When a judge is plainly wrong, especially when he claims to interpret the obvious, it is not wrong for any right thinking member of the public to cricitize him.
by N H Chan
In the New Sunday Times of April 19, 2009 there appears this astonishing remark (because it is erroneous in law) which was attributed to a Minister in the Prime Minister’s Department:
KUALA KANGSAR: Minister in the Prime Minister’s Department Datuk Sen Mohammed Nazri Abdul Aziz has hit out at Perak DAP chairman Datuk Ngeh Koo Ham for questioning a Federal Court ruling pertaining to Perak.
He said Ngeh should not question the court’s decision that Perak state assembly Speaker V Sivakumar did not have the power to suspend Mentri Besar Datuk Zambry Abdul Kadir and six Barisan Nasional (BN) state executive council members from attending the state assembly sittings. They were suspended for unprofessional conduct early this month.
There was no question of the judiciary interfering in the legislature as claimed by Ngeh as the courts were the best place to seek interpretation of the Constitution or law, he told reporters.
Nazri said the law did not intend to equip a speaker of a legislative assembly with unrestricted authority.
(the emphasis is supplied by me).
Everyone knows that Ngeh was talking about Article 72 (1) ofthe Federal Constitution which states:
72. (1) The validity of any proceedings in the Legislative Assembly of any State shall not be questioned in any court.
But what the Minister was saying is that “the courts were the best place to seek interpretation of the Constitution”. Now I ask the readers, do you, as a member of the general public, need a judge to interpret Article 72, Clause (1) above? But when the judges were asked to apply Clause (1) of Article 72, as we have recently observed, they have blatantly refused to apply the constitutional provision as it stands. We know that the words mean what they say. According to the dictionary the word “interpret” means “explain the meaning of”. I don’t think we need the Federal Court or any court to explain the meaning of Article 72 to us – the meaning is plain enough for us ordinary Malaysians to understand. No one in his right senses would attempt to interpret the obvious meaning of the words in Article 72(1), unless he wants to say the words mean something else as Humpty Dumpty did in Lewis Carrol: Through the Looking Glass, 6 Humpty Dumpty:
MP Gobind’s one-year suspension without pay/privileges – will Federal Court be guilty of selective justice?
Posted by Kit in DAP, Judiciary, Parliament on Wednesday, 22 April 2009
DAP MP for Puchong Gobind Singh Deo will initiate legal proceedings tomorrow morning to challenge his one-year suspension as Member of Parliament without parliamentary pay and privileges for his outburst against the then Deputy Prime Minister, Datuk Seri Najib Razak over the Mongolian Altantuya Shaariibuu C4 murder case.
The one-year suspension of Gobind Singh Deo on March 16, 2009 was a blatant case of abuse of Barisan Nasional majority in Parliament, subjecting Gobind to double jeopardy with a very harsh second punishment although he had earlier been punished by the Deputy Speaker, Datuk Ronald Kiandee with a one-day suspension.
The right and proper thing would have been to refer Gobind to the Committee of Privileges instead of using the UMNO/BN brute majority to summarily punish Gobind by suspending him as an MP without pay and privileges.
When Parliament should have invoked its powers to deal summarily with violations of parliamentary privileges like the obstruction and menacing by Selangor UMNO Youth goons of DAP MP for Bukit Gelugor Karpal Singh from carrying out his parliamentary duties in the parliamentary precincts on Feb. 26, 2009 when this is very clearly provided for under the Houses of Parliament (Privileges and Powers) Act 1952, the Barisan Nasional-majority Parliament failed to do so. Read the rest of this entry »
When the highest court in the land could bring down the Government of the day
by N H Chan
The front page of the Star newspaper of Friday, 17 April 2009 carries this startlingly outrageous decision of the Federal Court. The headline proclaims “Court: Siva does not have right to suspend seven”. The report reads:
PUTRAJAYA: The Federal Court has unanimously ruled that Perak Assembly Speaker V Sivakumar does not have the power to suspend Mentri Besar Datuk Zambry Abd Kadir and six state executive council members from attending the assembly.
It granted a declaration that the seven assemblymen were entitled to take part in all the assembly sittings and to carry out their duties.
Court of Appeal president Justice Alauddin Mohd Sheriff, who chaired a five-man panel yesterday, said the Speaker’s decision to suspend the seven applicants was ultra vires (outside the law) and invalid.
… The other judges were Chief Judge of Malaya Arifin Zakaria and Federal Court Judges Nik Hashim Nik Ab. Rahman, S Augustine Paul and Zulkefli Ahmad Makinudin.
This is a perverse judgement of the Federal Court. It is perverse because it is a decision that was made in blatant defiance of Article 72 (1) of the Federal Constitution which says,”The validity of any proceedings in the Legislative Assembly of any State shall not be questioned in any court”. The judges of the Federal Court have failed the people and the government of this country when they chose to ignore the law of the Constitution of Malaysia. In other words the judges have refused to do justice according to law.
Read the rest of this entry »
When justice is not administered according to law
by N.H.Chan
The story unfolds with the application of three turncoat members of the Perak legislative assembly for a declaration that Speaker Sivakumar’s order, which was made in the legislative assembly, that their seats in the assembly have become vacant because they have resigned was illegal. Here is the report from the Sun newspaper, Thursday April 2 2009:
IPOH: The High Court yesterday dismissed the application by Perak State Assembly Speaker V Sivakumar to strike out an original summons brought by the three independent assemblymen, seeking a declaration that Sivakumar’s order to declare their assembly seats vacant was illegal.
Justice Datuk Balia Yusuf Wahi set April 8 to hear the suit by the assemblymen Mohd Osman Mohd Jailu (Changkat Jering), Jamaluddin Mohd Radzi (Behrang) and Hee Yit Foong (Jelapang) against the speaker.
He also dismissed an application by three former Pakatan Rakyat state executive Councillors . . . and three registered voters to intervene in the case, ruling that they are not interested parties as claimed.
Sivakumar had declared the three state seats vacant based on their pre-dated resignation letters as the three assemblymen were formerly from the ruling coalition. Their resignation from their parties caused the balance of power to shift to Barisan Nasional.
Sivakumar had informed the Election Commission (EC) to call for fresh elections for these three seats but the EC declined and said the seats were not vacant. The three assemblymen then referred their suit to the High Court here for a ruling that they had not vacated their seats as declared by Sivakumar.
I don’t have to tell you how to judge the judge. You must know by now how to do it if you have read my articles in the internet. You will know he is a bad judge if he behaves unfairly to one side as against the other. It is your perception as a member of the public that matters and not what the judge thinks of himself. A judge who does not appear to be fair is useless to the judicial process. As such he is a bad judge and is therefore unfit to sit on the bench. The other essential qualification of a judge is to administer justice according to law. That said, we can now judge this judge.
Article 72, Clause (1) ofthe Federal Constitution clearly states:
Scraping the bottom of the barrel for judicial talent
Posted by Kit in Constitution, Court, Judiciary, Perak on Friday, 27 March 2009
How to judge a judge
– a talk given to the Perak Bar on 7 March 2009 –
by N. H. Chan
The judge’s craft
Before anyone can hope to be able to judge a judge it is essential that he should know about his craft. It is only when you know of the judge’s craft that you will be able to judge the performance of the judges: it is only then that you will know the difference between the good and the bad judges. But before you go about judging them, remember the words of the most liberal of American judges, judge Learned Hand, who once wrote:
“… while it is proper that people should find fault when the judges fail, it is only reasonable that they should recognise the difficulties. Perhaps it is only fair to ask that before the judges are blamed they shall be given the credit of having tried to do their best. Let them be severely brought to book, when they go wrong, but by those who will take the trouble to understand. (Leaned Hand, The Spirit of Liberty, at page 110)”
So do take the trouble to understand, then, you may severely bring the judges to book whenever they go wrong.
Read the rest of this entry »
Najib heralds the coming of a New Dark Age
Posted by Kit in Corruption, Judiciary, Najib Razak, UMNO on Wednesday, 18 March 2009
Parliament has just passed the RM60 billion Second Economic Stimulus Package in the form of a mini-budget, but there has been nothing “stimulating” on the economy.
Instead, the effect had been the opposite as illustrated by the unchecked fall in the Kuala Lumpur stockmarket index in the past six days since the announcement of the RM60 billion package, with the KLSE registering a fall from 858.22 points on March 10 to 841 points at the close of the market today.
Far from being able to stimulate the economy, the Deputy Prime Minister and Finance Minister, Datuk Seri Najib Razak is the main cause for the crisis of confidence gripping the country, even undermining the RM60 billion second economic stimulus package announced by him last week. Read the rest of this entry »
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