What the late Tun Mohamed Suffian Hashim said ....

In the Braddell Memorial Lecture that was delivered at the National University of Singapore in 1982, former Lord President and one of our greatest judges, Mohamed Suffian Hashim, described his fellow judges as follows:

"In a multi-racial and multi-religious society like yours and mine, while we judges cannot help being Malay or Chinese or Indian; or being Muslim or Buddhist or Hindu or whatever, we strive not to be too identified with any particular race or religion - so that nobody reading our judgment with our names deleted could, with confidence, identify our race or religion, and so that the various communities, especially minority communities, are assured that we will not allow their rights to be trampled underfoot."

Our three CoA judges have failed us miserably.

When justice is tempered with mercy

An Indonesian judge by the name of Marzuki was sitting in judgment of an old lady who pleaded guilty of stealing some tapioca from a plantation. In her defense, she admitted to the judge that she was indeed guilty of the crime because she was poor and her son was sick while her grandchild was hungry.

The plantation manager insisted that she be punished as a deterrent to others. The judge going through the documents then looked up and said to the old lady, “I’m sorry but I cannot make any exception to the law and you must be punished.” The old lady was fined Rp. 1 million (USD 100) and if she could not pay the fine then she will be jailed for 2 and a half years as demanded by the law.

She wept as she could not pay the fine. The judge then took off his hat and put in Rp. 1 million into the hat and said “In the name of justice, I fined all who are in the court Rp. 50 thousand (USD 5.50) as dwellers of this city and letting a child to starve until her grandmother have to steal to feed her grandchild. The registrar will now collect the fines from all the accused.” The court managed to collect Rp 3.5 million (USD 200) whereby once the fine was paid off, the rest was given to the old lady … .including the fine collected from the plantation manager.

WILL WE EVER SEE SUCH A HAPPENING IN OUR MALAYSIAN COURTS?

Can you honestly believe these crap?

I do not buy nor read The Star, The NST, The Malay Mail, Utusan Malaysia nor the Berita Harian.  The following are extracts taken from The Sun paper and you can see how righteous the BN people all turned out to be.  It almost makes you want to throw up.

Datuk Seri Najib Razak

"Today's verdict shows once again that, despite what many have claimed, the Malaysian judiciary is an independent institution where neither politics nor politicians have any influence over the dispensation of justice."

Datuk Seri Nazri Aziz - Minister in the Prime Minister's Department

"Unlike them [the Opposition], we respect the decision of the judges.  All this while, they have said our judiciary is not fair but now it is proven that the courts are very independent."

Dr S Subramaniam - President, MIC

"The verdict should put an end to all accusations of a manipulated judiciary."

Datuk Saifuddin Abdullah - Deputy Higher Education Minister

"I have always respected the judiciary institution so there's no question on its independence."

Datuk Seri Dr Rais Yatim - Information, Communications and Culture Minister

It is noted that Anwar's acquittal proved that the government did not hold sway over the judge's decision.

Chang Ko Youn - Deputy President, Gerakan

Called on Pakatan Rakyat leaders to apologise to the publice for  "the wild and baseless allegations made against the judiciary and the government with regard to the trial."

Abdul Rahman Dahlan - Kota Belud MP

The decision by the judge is a vindication for the judiciary.

Datuk Seri Mohd Shafie Apdal

The verdict is a proof that the judiciary is independent and there is no interference from the authorities.

Some questions remain unanswered:

1. As this was a high profile case, why was the verdict delivered orally and not in written form?  Was the judge waiting for last minute instructions from the "top"?

2. There were a number of loopholes in Saiful's statements, but the judge picked only one issue which was the least expected among those presented during the 3-year hearing.

3.  The same judge once said that Saiful was a "credible" witness.  You mean to say, he is now no longer credible, since the last hearing in May 2011?

Therefore, my take is that Anwar is acquitted based on the following scenario.

Whether Anwar goes to jail or acquitted, the backlash will be on UMNO, as much damage has already been done.  UMNO have a choice of the lesser of two evils.  If Anwar goes to jail, he will end up being a 'martyr' and this message will be driven home relentlessly by Pakatan to the rakyat which Najib can ill afford since he has to call for a general election soon. If Anwar is acquitted, there will still be problems for Najib and his coalition, but at least, he has one saving grace.  To show the people that his transformation plan is working and an independent judiciary is just the beginning.

So, now the judiciary is independent.  Alleluia .... but why then  did these same people not protest vehemently when the opposition time and time again publicly stated that the judiciary was beholden to the Executive?  Why only now when one judge started to acquit Anwar, when lo and behold, all and sundry in the BN start to heap praises on a system that has long been under their influence.

Even if the judiciary has been "turned over" into a credible institution, which I am giving it a benefit of a doubt, UMNO must remember, one swallow does not make a summer.

A crying shame indeed!!

[Pix from Malaysians Unplugged Uncensored]

The appellate court judge accused of plagiarising the judgment of a Singapore judge had ironically done so in a copyright infringement case. This was revealed by veteran lawyer Karpal Singh, who yesterday submitted a motion to the office of the Parliament speaker against the judge, with the support of close to 60 Pakatan Rakyat MPs, to have him placed before a tribunal and be removed. "It is rather odd that, I am told, the reputed judge had chosen to plagiarise former Singapore judge GP Selvam's judgment on a copyright issue," Karpal said, laughing. "I am also told that this created an uproar between the judges of Singapore and Malaysia. I was made to understand the Singapore chief justice has also written to our CJ (chief justice) to complain about the matter." Karpal said this to Malaysiakinion the sidelines of Anwar Ibrahim's application before the Federal Court today. Commenting on the issue as well, Anwar, who is opposition leader and PKR de facto leader, said this showed that some Malaysian judges lacked integrity.

Malaysiakini tried to contact the judge a number of times, but the only response we could get was from his secretary, who said, "he is not available". Yesterday, Karpal had submitted a motion on the matter to the office of the Dewan Rakyat speaker, under Standing Orders 27, read with 36(8) and Article 127 of the federal constitution, which he wants tabled in Parliament. He explained that he had sent a letter to the judge on Aug 22 and gave him seven days to respond.

However, there has been no response to date. Karpal further wrote another letter, on Sept 29, informing the judge that since there was no reply, it would amount to an admission of the misconduct. The speaker has seven days to decide whether to present the motion before Parliament. The judge accused of plagiarism had once served as a High Court judge in Johor Baru.

CJ Eusoff and Rais had responded then Malaysiakini asked Karpal whether he was referring to two news reports in Singapore's Straits Times - March 8 and April 13, 2000 - and he confirmed the matter. The newspaper quoted then chief justice Eusoff Chin as having written to his Singapore counterpart, justice Yong Pung How, asking for more information on the allegation of plagiarism.

A month later, Eusoff told journalists that the matter was resolved and that it had arisen out of a "misunderstanding." He however did not elaborate.

Then minister in the Prime Minister's Department Rais Yatim was also reported to have promised an investigation.

Rais had said it was not easy to establish plagiarism because it was normal for judges to quote one another extensively. "Quoting another judge is not plagiarism," he said. The Straits Times report of March 18, 2000, also quoted the former Singapore judge accusing the Malaysian judge of having obtained a copy of his (Selvam's) judgment through a lawyer and "having copied chunks from me without acknowledging". Selvam was also quoted to have said the Malaysian judge backdated his judgment so that people "will think I copied from him!"

[Source: Mkini] -----> Even as a blogger I don't plagiarise. I quote the source of my article.

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At least this fella took the trouble to plagiarise. There are some judges who took the easy way out by getting VK Lingam to write judgements for them. Then there are those who are still trying to figure out what to write [OMG!] especially in the case of Altantuya which is now two years in waiting. What a crying shame our judiciary has become. We used to address judges as 'Your Honour'. Is there any honour left when the works of others are being stolen? You be the judge of that.

The judiciary is not the only cause of concern. Plagiarisation is also alive and well in our institutes of higher learning. Read here for such shocking revelation.

The Perak MB Case

"As I said before, our judges in the upper echelon of the judiciary will continue to foil the people in this country. Today, the principles governing parliamentary democracy and the rule of law have been sacrificed because they have to please the political masters."

I hope the BN leaders in the midst of their celebrations realise the significance of the ruling. It means that the monarch can refuse the appointment of a menteri besar chosen by the party in power (as in Terengganu) but now can dismiss the lawful menteri besar if he so chooses. Another black day for the country."

[Zaid Ibrahim, former law minister and Pakatan coordinator]

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NIZAR : EXPECT ABSOLUTE MONARCHY NOW

The Federal Court decision today will lead to a situation where there could be “absolute monarchy” in Malaysia, claimed former menteri besar Mohammad Nizar Jamaluddin. He said there will be no need to hold elections, since the ruler can decide on who can lead the executive at state or federal level. At a press conference immediately after the court ruled against him today, Nizar said: “This is the highest risk the country is facing now, (and) which we need to correct. The verdict I felt has set aside the principles of what (is) already in our federal constitution.” Nizar also said he has yet to decide whether or not to file a review against the decision which declared BN's Zambry Abd Kadir the lawful menteri besar of Perak. "We will scrutinise the written judgment and then decide," he said, calling for calm among supporters. "This is the saddest day (for) Malaysia as this shows the judiciary is not independent. Our target now is to win back Perak. “The people want to see that the judiciary has the independence to make its own decisions. But what you heard just now, shows that the judiciary is still not independent from the influence of others.” The crisis in Perak cannot be ended by this decision, he said, but by giving the right to the people to vote for their representatives. The decision, he further said, has completely neglected or set aside all constitutional principles.

“.... We have had precedent from genuine judges. Those have been completely neglected and set aside. This is the prerogative of the judges. But this is the saddest moment where democracy has been torn to pieces, the right of the people has been neglected.

“An illegitimate government which did not follow the rules of parliamentary democracy has been supported by the judicial institution. This is sad as it would lead to other consequences. Nizar also pledged that Pakatan's other pending court cases - such as the one filed by former speaker V Sivakumar against the three defectors - will be pursued.

 

[Source : Mkini]

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DID THE FEDERAL COURT CONTRADICT ITSELF IN THE PERAK MB RULING

The Federal Court today may have denied Datuk Seri Nizar Jamaluddin his Perak mentri besar’s post but its just-released collective written judgment is apparently riddled with contradictions, a retired judge said.

Nizar, 53, who had previously been declared the rightful mentri besar, lost the job when a three-man panel of Court of Appeal judges reversed the High Court’s decision last May 22.

The Pasir Panjang assemblyman then took it to the Federal Court and asked the Bench to address three issues based on the Perak Constitution, which, in plain English, translates to:

1. Whether the MB’s post is vacant when he did not resign; none of his peers had passed a vote of no confidence against him; he had asked the Sultan to dissolve the state assembly and start the process for fresh elections and was rejected.

2. Who decides that he has lost the confidence of the state assembly?

3. Who has the right to sack him if he refuses to resign?

The five apex court judges who replied were Tan Sri Alauddin Mohd Sheriff, Tan Sri Arifin Zakaria, Datuk Zulkefli Ahmad Makinuddin, Datuk Wira Ghazali Mohd Yusoff and Datuk Abdull Hamid Embong.

In declaring Datuk Seri Zambry Abd Kadir the rightful Perak MB, the coram summarised their reply, found at the end of 40-pages, as follows:

• Yes. (To quote: “The answer to the first question will be in the affirmative;)

• Yes. (“As for the second question, our answer is that under Article XVI(6) the question of confidence in the MB may be determined by means other than a vote of no-confidence in the LA;”)

• Yes. (“As for the third question our answer is that if the MB refuses to tender the resignation of the Executive Council under Article XVI(6) the MB and the Executive Council members are deemed to have vacated their respective offices.”)

“On the face of it, it sounds like they are contradicting themselves, isn’t it?”, says Chan.

But a closer look at the full judgment, made available to reporters a few hours after the decision was pronounced in Putrajaya, showed several seemingly contradicting statements, prompting a former judge to question the soundness of the top court’s reasoning in one of the most critical cases to affect the highest law of the land — the constitution.

Datuk Chan Nyarn Hoi was puzzled at a certain section that had earlier been read out in open court by the third highest-ranking judge in the country, Chief Judge of Malaya Arifin.

“However, we would add that this is by no means the end of the matter, as it is always open to the appellant [Nizar] to bring a vote of no confidence against the respondent [Zambry] in the LA [Legislative Assembly] or make a representation to HRH [His Royal Highness the Sultan of Perak] at any time if he thinks that the respondent does not enjoy the support of the majority of the members of the LA,” it said.

To the retired Court of Appeal judge, more popularly known as NH Chan, that particular section “sounds strange”.

“On the face of it, it sounds like they are contradicting themselves, isn’t it?” the 74-year-old asked The Malaysian Insider over the phone.

“They say [Nizar] can take a vote of no confidence now, but why couldn’t they do it earlier?” he wondered.

“And if it’s really contradicting, then the whole judgment is rubbish,” he added.

Chan, who now lives in Ipoh, refrained from commenting further until he had read through the full written judgment.

 

[Source: The MalaysianInsider]

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APEX COURT IGNORES STARE DECISIS

Stare Decisis is a hallowed principle in the jurisprudential canon. It simply means that you respect the legal precedent established in analogous cases in the past. The decision handed down today by the Federal Court in the case of whether Pakatan Rakyat's Mohammad Nizar Jamaluddin or Barisan Nasional's Zambry Abd Kadir is the rightful menteri besar of Perak ignored the established precedents. The precedents were set in the Stephen Kalong Ningkan case in Sarawak in 1966 and the Pairin Kitingan case in Sabah in 1985. In both cases, the incumbent chief minister, Sarawak's Ningkan in the first instance and Sabah's Pairin in the latter, were either removed by ruler's fiat or the appointment was challenged by a rival candidate for the post. The Ningkan case established as a legal principle that once appointed, a chief minister could only be removed by a vote of no-confidence in the legislative assembly. The judge's decision in the Pairin case upheld that principle. In the Nizar vs Zambry case, High Court judge Abdul Aziz Abdul Rahim ruled last May in favour of Nizar as the rightful MB but first the Court of Appeal and now the Federal Court countermanded him. Justice Abdul Aziz was respectful of the established precedent in the case. Doctrinal consistency is highly valued in jurisprudential theory. No unique facts In jurisprudential theory, established precedents can be overthrown only if unique facts enter the vortex of discursive imperatives in which a case is decided. There were no unique facts in the Nizar vs Zambry case. Three state assemblypersons belonging to Nizar's Pakatan Rakyat faction abruptly became independents, leaning towards support for the BN. Two of them were under indictment for corruption. In the circumstances, the motives of the duo for becoming BN leaning independents could not be said to be above cavil. The obvious resort, in conditions where there is an impasse in the legislative assembly brought on by legislators' changed allegiance, influenced by unusual factors, would have been to that final arbiter of a polity's distempers: the ballot box. But no, the Court of Appeal, last May, and now the Federal Court have decided to ignore the principle of stare decisis and make the notion of judicial precedent a piece of chaff, drifting on every wind of circumstance. It's the kind of reasoning that makes you think that the law is an ass.

[Source: Mkini]

Zambry is the Mentri Besar

The Federal Court ruled - Zambry is the Mentri Besar of Perak.

Read Malaysiakini report here.

Read The Malaysian Insider report here.

News Alert

TODAY IS JUDGMENT DAY

ON WHO IS THE RIGHTFUL

MENTRI BESAR OF

PERAK.

NIZAR OR ZAMBRY?

MORE NEWS TO FOLLOW.

VK Lingam - now maybe we have a case

BREAKING NEWS :Pakatan Rakyat MPs today presented the alleged key witness that may support their claims that senior lawyer VK Lingam and former chief justice Tun Eusoff Chin had planned their New Zealand trip together.

They hope the alleged key witness, Lingam’s former secretary Jayanthi Naidu, will prove that the government is attempting to cover up the scandal which has raised suspicions about possible collusion.

The Malaysian Anti-Corruption Commission (MACC) had said there was no case to answer and that a key witness could not be located. It had also said that Lingam had not broken any laws for fixing judicial appointments as there was no evidence he had a hand in the appointments.

Lingam had claimed he was not the person captured in a video that opposition leader Datuk Seri Anwar Ibrahim showed in 2007, claiming it was proof that judicial appointments were fixed during Tun Dr Mahathir Mohamad’s reign as prime minister.

Appearing in the Parliament lobby today alongside R Sivarasa, Subang MP and PKR vice-president, a smiling Jayanthi reiterated she had been the one who arranged the trip for both Eusoff and Lingam.

“After the Royal Commission proceedings, I gave another statement to the MACC in the presence of my lawyer (which) among the matters... were that Lingam and Eusoff and families’ holiday trip to New Zealand was all paid for by Lingam,” she said.

Jayanthi, who quit working for Lingam in 1995, also made fresh claims of how Lingam had “fixed” a judgement by a judge in the Vincent Tan v MGG Pillai libel case back in 1993.

Lingam had represented Tan Sri Vincent Tan in the case, in which Pillai was ordered to pay compensation in the millions and resulted in the veteran journalist declaring bankruptcy.

“The judgement delivered by Datuk Mokhtar Sidin were written in Lingam’s office. I was among the various staff present in the office assisting in the process.”

“I am also aware of a few incidents in Lingam’s office where he and other lawyers have also written or assisted the writing of draft judgements,” added the former secretary.

Jayanthi also claimed she had been instructed many times by her former boss to withdraw cash in amounts between RM100,000 and RM300,000 to be “hand delivered by others to individual judges.”

All her claims had been made to both the MACC and the Royal Commission set up to probe a video clip of Lingam purportedly brokering the appointment of judges.

Though the commission strongly suggested that action be taken against Lingam, Eusoff and others involved, Parliamentary Affairs Minister Datuk Seri Nazri Aziz yesterday told parliament that no further action will be taken as they have, technically, not broken the law.

He also said the MACC had cleared both Lingam and Eusoff of any wrongdoing as a “key witness” could not be located.

It is uncertain as to whether Jayanthi is the person MACC is looking for but PR leaders insist that Lingam’s former secretary is the so-called missing key witness.

Sivarasa claimed with the presence of Jayanthi today, Nazri and government had blatantly lied and are trying to sweep the case under the carpet.

“It shows that the government had, from the beginning, never intended or possessed the political will to take any measures to reform the judiciary,” he said.

Sivarasa added that while there are no longer any legal ramifications, the move to present the alleged key witness to prove the purported cover-up attempt will leave the government open to judgment by the electorate.

And this may prove to be a setback for the government who is trying to win support from a sceptical public, said the Subang MP.

[Source: The MalaysianInsider]