Archive for category NH Chan
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.
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 »
How to judge the judge?
Posted by Kit in Constitution, Court, NH Chan, Parliament, Perak on Friday, 6 March 2009
by N. H. Chan
In The Sun newspaper, March 4, 2009, I read on page 1 this alarming report:
“Ipoh High Court grants injunction sought by Datuk Dr Zambry Abdul Kadir and the six State Executive Councillors to stop speaker V. Sivakumar from convening any state assembly sitting.
Court also ruled that Sivakumar’s five lawyers have no legal standing to represent him in the case filed by Zambry to seek a declaration that Sivakumar’s decision to suspend him and his executive council was unconstitutional and unlawful.”
The arrogance of a novice judge
I must say I was taken aback by the astonishing ruling of the High Court judge. The full report is on page 6 of the newspaper. There I find that the judge was Mr Ridwan Ibrahim, a judicial commissioner. He ruled that the lawyers “engaged by Sivakumar had no locus standi to represent him in an application by Perak Mentri Besar Datuk Dr Zambry Abdul Kadir, who is seeking a declaration that Sivakumar’s decision to suspend him and his executive council was unconstitutional and unlawful”.
Sivakumar’s leading lawyer was Mr Tommy Thomas, and I quote from the newspaper of what he said: Read the rest of this entry »
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