Ex-top judge’s disclosure vindicates whistleblower

EXCLUSIVE Following recent revelations by former Court of Appeal judge KC Vohrah of questionable actions by ex-chief justice Eusoff Chin, the man who had first revealed judicial corruption in Malaysia feels quietly vindicated.

Syed Ahmad Idid Syed Abdullah Idid was the High Court judge who was forced to resign for writing an anonymous letter exposing the matter in 1996, which was sent to a select set of high officials.

Among its allegations, it revealed Eusoff had gone on a New Zealand holiday with VK Lingam, a senior lawyer who appeared before the then chief justice in court on a number of cases.

Pictures of the duo taken together with their families underscored their close ties.

It resulted in Syed Ahmad Idid being told to resign when the letter he sent mysteriously found its way into some government departments and then spread to the media.

Syed Ahmad Idid's immediate reaction to Malaysiakini's article on Vohrah was elation - that the former Court of Appeal judge had written on the matter and he was certain other judges could also tell of similar experiences.

Among other transgressions, the Ayer Molek case that Vohrah referred to was filed in the Special and Appellate Powers Division whereas it should have been in the Commercial Division.

Syed Ahmad Idid also recalled a similar incident as a Kuala Lumpur High Court judge with the Commercial Division from 1995 to 1996.

According to him, a case involving a sum of a quarter of a billion ringgit was correctly filed in the Commercial Division before him. But before it could be called in open court, the file was wrested away by Eusoff.

“That matter was given to another judge who now resides, and must be enjoying life, in Europe,” he quipped.

Appalled at corruption

Syed Ahmad Idid was a former assistant director with the Royal Customs and Excise Department before he left to read law in the Inner Temple London. He was legal director of a bank before being appointed a High Court judge in 1990.

In 1996, appalled at the corruption and dubious practices in the corridors of justice, he turned whistleblower.

He remembers that his anonymous complaint over misconduct in the judiciary, especially on the then lord president and CJ, Eusoff Chin (right), was sent to a few top government officers whose duties he hoped included enhancing the standards of performance in the government and protecting the integrity of the country.

Unfortunately someone in a department had disseminated it to the media, along with a ‘covering note’.

“The aim was to frame me. The then attorney-general (the late Mohtar Abdullah) - a reader of English fiction - described this as a ‘poison pen’ letter.”

Somehow the letter was traced back to him and he was given two options - to resign honourably or be detained, possibly under the Internal Security Act.

A senior official, representing the AG, had met him armed with the offer, revealed Syed Ahmad Idid.
                                              
He said Mohtar was seen as overly enthusiastic to kill the ‘poison pen’ letter writer rather than investigating the allegations made against Eusoff. “He went to the press as though he was out for revenge.”

Queried why he did not fight back, Syed Ahmad Idid said as a judge he could not join the political fray.
                                                                                                                      
“I had no political party and so no political pull or push. The press jumped in and wrote all sorts of things against me.

“A reporter wrote I had escaped to London. In reality, I was eating ‘nasi lemak’ right here in Section 21, Petaling Jaya.

“Even a professor took advantage by writing about people who wrote poison-pen letters. So the lies mounted. But the newspapers which printed the lies paid dearly through their falling sales,” the former judge said.

Threat of imprisonment

Asked as to why he did not take legal action, Syed Ahmad Idid said he was threatened with imprisonment.

“I had a heart attack the previous year. Naturally I was fearful I could not survive the ordeal of a prison or even a lock-up stay. Also I had no savings to engage counsel and had no hope for the ‘justice that money can buy’.

“So you see my predicament. I made ‘doa’ and learnt that discretion is the better part of valour.”         

Syed Ahmad Idid added he believed then prime minister Dr Mahathir Mohamad relied a lot on his advisers and as Mohtar held the reins, the PM had no alternative but to believe what the AG told him.

“I did not contact the former AG or the former IGP. Both knew my complaints were not investigated. On the contrary, I, the complainant, was punished.

“Thankfully, I have genuine friends both in the government, the courts and also the private sector who support me a lot, (and) I am grateful. Naturally I wish they can get Umno to push for remedial action in my favour. However I guess Umno is busy with so many issues.”

Lingam was later implicated in a video showing him having a phone conversation with then Chief Judge of Malaya Ahmad Fairuz Sheikh Halim in 2001 over the fixing of judges.

This eventually led to a royal commission of inquiry in 2008 to investigate the issue.

The five-member panel proposed action be taken on Lingam, Eusoff and four others including Mahathir.

However until today, no action has been taken against any of the six.

“After the Lingam inquiry, there should have been “korek, korek and korek” (dig, dig and dig) for more truths,” Syed Ahmad Idid sighed in dejection, playing on the now legendary Lingam’s “correct, correct, correct” quote that was caught on the video.

However in a manner of speaking, Syed Ahmad Idid had the last laugh. He received many calls and text messages congratulating him on being vindicated for the revelations he made more than a decade before the infamous video was made public.

Compensation received

He has also seen former lord president Salleh Abas and five other Supreme Court judges being compensated in 2008.

In 1988, following the Umno debacle in which the party was declared illegal by the court, Salleh and other Supreme Court judges were forced to resign.

Two decades later the government under Abdullah Ahmad Badawi decided the judges were hard done by, and granted compensation and returned their pensions.

Syed Ahmad Idid now hopes the government will similarly look into the injustice done to him.

“I hope the government would remedy the wrong done to me...,” he said, stressing that he had sent his 1996 complaint to a few top government officials but did not however make it public.

“In fact, a professional forensics expert could easily confirm that the typeset, font and paper of that covering note and the attachment could not have come from me but from a department over which I had no control.”

Syed Ahmad Idid's only regret was that he had been perceived to be an opposition sympathiser after the late Karpal Singh spoke well of him in Parliament when news of his resignation became public and again in 2006.

This, he said, had resulted in some within the government branding him as an opposition supporter. According to Syed Ahmad Idid, he was informed of this by a former cabinet minister.

“I was denied any form of support. How more injudicious can the country get,” he said.

Despite this, Syed Ahmad Idid is glad that current judges, especially those appointed by the Judicial Appointments Commission, are of quality, possessing experience and qualifications.

“This is essential in persons chosen to administer justice. A few may be young or ‘belum masak’ (not mature). But so long as they gather knowledge day by day and are fiercely honest and impartial, our judiciary will move a long way from the Eusoff Chin regime,” he remarked,

After his premature end in government service, Syed Ahmad Idid has kept himself busy with visits to the Inner Temple, his alma mater, and the International Court of Justice in The Hague as well as studying the plight of Muslims in Mindanao.

He has written extensively on the negotiations between Manila and Moro Islamic Liberation Front (MILF) and on basic law.

In addition to speaking at arbitration conferences overseas, Syed Ahmad Idid has participated in the United Nations Commission on International Trade Law (Uncitral) meetings in New York and Vienna.

In 2012, Syed Ahmad Idid wrote a book titled ‘Writing of Judgments: A Practical Guide for Courts and Tribunals’.

Ex-judge, senior lawyer want Shafee disciplined

 

Senior lawyer and government-appointed prosecutor Muhammad Shafee Abdullah, who has for the past few weeks held open dialogue sessions on Anwar Ibrahim's Sodomy II conviction, is in further trouble with his peers.

Now, a former Court of Appeal judge and a senior lawyer have presented a motion to the Bar Council for the 69th annual general meeting of the Malaysian Bar to condemn Shafee’s behaviour.

Retired judge VC George and senior lawyer Tommy Thomas further want the Bar Council to refer the  Umno-linked lawyer to its disciplinary board and take steps to prevent him from continuing to bring the legal profession into disrepute.

The motion was tabled by Tommy (left) and seconded by George, who is a consultant with the law firm M/s Skrine & Co.

In the motion tabled for the AGM, scheduled for March 14, the two cited Shafee's actions as questionable, arguing that barristers must not permit their absolute independence and integrity to be compromised, or compromise their professional standards in order to please clients.

They cited Shafee's actions of holding press conferences condemning Anwar, who cannot respond as a convicted prisoner, as one of the reasons why action should be taken against Shafee.

Thomas and George said Shafee's actions had drawn attention to his prowess as a top rate prosecutor and had demeaned his prosecution legal team by his participation in the nationwide roadshows.

Shafeee’s granting of interviews to traditional and on-line media concerning his performance also warranted action to be taken against the government-appointed prosecutor.

Shafee's actions, they said, are in violation of Rules 5(a), 31, 32, 33 and 49 of the Legal Profession (Practice and Etiquette) Rules 1978.

Rule 5(a) states that a lawyer should not accept a case if he or she cannot be a professional, while Rule 31 states lawyers should uphold the dignity of the profession.

Shafee was fined RM5,000

Tommy and George also cited Rule 33 (feelings between clients should not influence the lawyer's conduct towards parties), and Rule 49, which states that lawyers should not ask for a matter or case to be reported.

They quoted the reaction of former attorney-general Abu Talib Othman (right), who said such action by Shafee was as if he was advertising and promoting himself to the media and called for his appointment as a prosecutor to be revoked.

Tommy and George also added a quote from celebrated English judge Lord Denning, who said that a prosecutor is not above the law.

Shafee is no stranger to controversy, for he has been fined RM5,000 by the Advocates and Solicitors Board for promoting himself in two articles published by an English daily.

He tried to have the fine set-aside in an appeal to the High Court in Kuala Lumpur, but the judge dismissed his review application.

The matter is still subject to a final appeal, before the Court of Appeal.

Trial judge ordered Anwar case evidence sealed, lawyer says

Malay Mail 
by PEARL LEE

PETALING JAYA, Feb 27 — A defence counsel in Datuk Seri Anwar Ibrahim’s sodomy hearing confirmed the High Court judge had reminded the parties involved that evidence in-camera adduced by Saiful Bukhari Azlan “stay within” the courtroom. 

Gobind Singh Deo, who represented Anwar in the Federal Court appeal, said this following claims that prosecutor under fiat Tan Sri Muhammad Shafee Abdullah had revealed details of in-camera proceedings during a public forum last week.

“It was clearly expressed (in the proceeding notes) by the trial judge (Datuk Mohamad Zabidin Mohd Diah) that such matters must not be reproduced,” said Gobind.

“As such, the attorney-general should state if his office had committed contempt of court as the order was made in the presence of then former solicitor-general II Mohd Yusof Zainal Abiden and it was pronounced in open court.”

According to the notes of the court proceedings made available to Malay Mail, Mohamad Zabidin had said: “I would like to remind parties here that today’s proceeding is in camera, that means whatever evidence adduced stays within these four walls.” 

He said although Shafee only appeared on behalf of the prosecution at the appeal level, he would have known about the matter through the records.

“Following the clarification from the Bar Council on proceedings held in camera, I now urge the presiding High Court judge in the Sodomy II trial to rule whether Shafee acted in contempt of court when he revealed the evidence.”

Malay Mail in its front page report yesterday reported Lim as urging the Bar Council to clarify its stand on Shafee’s conduct in disclosing court proceedings which were not for public consumption.

The DAP lawyer said such actions had serious implications as it affected the criminal justice system and a clarification would act as a future guide for members of the Bar.

He also said the Bar Council should refer Shafee to the disciplinary board if his actions were deemed a breach of the Legal Profession Practice and Etiquette Rules.

Shafee, had during a forum organised by Umno Youth in Kelana Jaya, said Anwar was a “closet homosexual” who cried political conspiracy only when his sexuality was exposed. It was also reported he had revealed lurid details, adduced in court, to the public. 

He had also said Anwar’s refusal to admit to his purported homosexuality made him a “dangerous man” and a threat to national security.

Shafee, who was the lead prosecutor in the appeal, had embarked on a roadshow to explain Anwar’s conviction to rebut claims of political persecution.

Anwar was sentenced to five years’ jail on Feb 10 after the Federal Court upheld the Court of Appeal’s conviction on the sodomy charge.

Efforts to contact Shafee and Attorney-General Tan Sri Abdul Ghani Patail proved futile.

KC Vohrah: Ex-CJ Eusoff tried to subvert judge

 

In yet another expose of serious transgressions committed by the Malaysian judiciary, it has now been alleged that former chief justice Eusoff Chin tried to influence a Court of Appeal judge who was about to hear the appeal of the controversial Ayer Molek Rubber Company vs Insas Bhd case in 1995.

The subversion has been alleged by a now retired Court of Appeal judge who made the claims in an in-house publication of the Malaysian judiciary last year to mark the Court of Appeal's 20th anniversary.

Former Justice KC Vohrah - who sat on the panel hearing the Ayer Molek appeal - wrote in his article that one of the judges of the three-member panel was asked to meet Eusoff.

Besides Vohrah (left) - who was then a High Court judge co-opted to sit at the Court of Appeal - the other judges who sat for the case were Court of Appeal judges NH Chan and Siti Norma Yaakob, the latter who later rose to become the first female Chief Judge of Malaya.

Vohrah alleged in his article - titled ‘In the Court of Appeal, during the winds of change’ - that Eusoff called the judge into his chambers before the appeal was heard and when the judge entered, the CJ pointed to a pile of files on his table.

"He (Eusoff) said the papers were related to the Ayer Molek case and he (the CJ) indicated that the appeal had no merit," claimed Vohrah.

Vohrah, however, did not name who was the judge who met Eusoff. His startling article appeared in the booklet Court of Appeal, Malaysia, 1994-2014 - 20th anniversary which was published last year.

In the Ayer Molek case, Insas was represented by the well-known VK Lingam while Ayer Molek was represented Loh Siew Cheang. Lingam was later implicated over the infamous video clip case and was also caught with Eusoff holidaying together in New Zealand.

A royal commission of inquiry formed to investigate into the video clip allegations had recommended action be taken against Lingam and Eusoff and four others, including former former premier Dr Mahathir Mohamad.

History of Ayer Molek vs Insas

In explaining the Ayer Molek case, Vohrah - now a consultant at Lee, Hishammuddin, Allen and Gledhill - wrote that the case involved the grant of an ex-parte order to compel Ayer Molek to effect the transfer of 540,000 ordinary shares of Ayer Molek to Insas in the share register of the company and to issue new certificates in Insas' names within two working days of their receiving the share certificates.

On April 12, 1995, Ayer Molek filed an application to set aside the ex-parte mandatory order of April 10, 1995.

That application came up for hearing before the High Court on April 13, 1995 but the judge adjourned it to April 27, 1995 which was after the two days period he allowed for compliance of his ex-parte order.

The defendants immediately applied for a stay of the ex-parte mandatory order pending disposal of their application to discharge it. The High Court judge refused to grant a stay of his ex-parte order.

On April 14, 1995, the transfer of the shares was registered in the share register of Ayer Molek and new share certificates were issued to Insas under compliance of the ex-parte order.

On April 18, 1995, Ayer Molek filed a notice of appeal against the ex-parte order at the Court of Appeal. On the same day, they filed a motion for a stay of the ex-parte order pending their appeal.

At the Court of Appeal hearing, it was abundantly clear (Vohrah wrote in his article) that grave injustices had been perpetrated in the case at the High Court level.

The appellate court granted an interim order that pending the disposal of the appeal, the respondents (Ayer Molek) were restrained from exercising any rights including disposing of the shares.

Vohrah, Chan and Siti Norma wrote separate judgments, where Chan wrote on the abuse of the process of the High Court while Siti Norma wrote on the fact that the proceedings were filed in the Special and Appellate Powers Division of the High Court whereas it should have been in the Commercial Division.

"I wrote on the company law aspects of the case involving the transfer of shares," Vohrah said in his damning article.

'Unethical lawyers'

Chan, Vohrah remembers, skilfully melded their three views and his judgment stated unequivocally that the case was about an injustice that had been perpetrated by a court of law.

"Here Insas - through their legal advisers - have abused the process of the High Court by instigating the injustice through misuse of the court's procedure by manipulating it in such a way that it becomes manifestly unfair to the defendants," Chan wrote in his judgment.

"By doing what they did, these unethical lawyers have brought the administration of justice into disrepute. While it does not render the
proceedings to be in any way invalid, it may give the impression to right thinking people that litigants can choose the judge before whom they wish to appear."

The High Court case was heard when then the court was housed in Wisma Denmark or Denmark House in Kuala Lumpur and in his judgment, Chan quoted Shakespeare's 'Hamlet' in saying that, "Something is rotten in the state of Denmark."

The Court of Appeal granted the stay order on July 26, 1995 and written grounds were given five days later.

Vohrah wrote: "Swift as an arrow a stay application on appeal against that decision was filed on July 27, 1995. The application and appeal were heard at the Federal Court on August 1, 1995 before a three-member bench comprising Eusoff (above), a Court of Appeal judge and a High Court judge. The written grounds was provided 12 days later which set aside the Court of Appeal decision."

The former judge noted that the Malaysian Bar was aghast at the decision made by the Federal Court and issued a strong statement against it while saying the panel headed by Eusoff had been illegally constituted.

Justice Hishamudin enters

Eleven years after, the retired judge noted the Bar's views was proven right following a RM100 million defamation suit brought by Lingam against Euro Money Publications over an article titled ‘Malaysian justice on trial’ which was published in the International Commercial Litigation magazine.

The case came up before Justice Mohamad Hishamudin Mohd Yunus, whom Malaysiakini highlighted earlier this week for being sidelined for elevation to the Federal Court despite being the most senior judge at the Court of Appeal.

While Lingam submitted that the Court of Appeal judgment in the Ayer Molek case had been expunged, Justice Hishamudin (left) stood his ground saying the Federal Court panel by Eusoff was not legally constituted as it comprised only "two legally competent judges, namely, Eusoff and a Court of Appeal Judge. The third judge of the panel, Pajan Singh Gill, was not legally competent to sit on that bench as he was only a High Court judge then".

"Justice Hishamudin ruled that the judgment of the Court of Appeal by Chan, Siti Norma and Vohrah in the Ayer Molek case is still wholly intact and is still a valid and binding judgment and 'I am entitled, indeed I am duty bound, to take cognisance of the judgment in deciding on Lingam's claim in this action'," Vohrah wrote.

Eventually, Lingam's (right) suit was dismissed by Justice Hishamudin.

Eusoff Chin also presided in the controversial Federal Court land case of Adorna Properties Sdn Bhd vs Boonsom Boonyanit in 2000 in Penang where his judgment created an uproar for recognising that land deals done through fraudulent means were legal.

This decision was eventually corrected by then Chief Justice Zaki Azmi in another land matter in 2010 in the case Tan Ying Hong vs Tan Sian San, Cini Timber Industries Sdn Bhd and United Malayan Banking Corporation Bhd.

As a footnote, despite the royal commission of inquiry in recommending action against Lingam and Eusoff, none has been taken till today.

Nevertheless, Lingam is facing contempt proceedings in the Kian Joo Can Company matter.

'The only time someone won against a sitting PM'

 

Former Kota Alam Shah assemblyperson and lawyer M Manoharan remembers well a decision made two years ago by a three-member bench of the Court of Appeal.

This was the bench, headed by Justice Mohd Hishamudin Mohd Yunus, that ruled he and Hindraf leader P Uthayakumar had legal standing to file a suit against the present prime minister and his deputy.

This decision by the appellate court, delivered in January 2013, is said to have halted Justice Hishamudin’s elevation as a Federal Court judge by the Prime Minister’s Office in September that same year.

This followed widespread talk that Prime Minister Najib Abdul Razak wanted another person elevated, not Justice Hishamudin, despite the Judicial Appointments Commission's (JAC) recommendation that Justice Hishamudin be elevated to the Federal Court.

JAC is the body formed under the law in 2009 to oversee the appointment of judges of the High Court, Court of Appeal and the Federal Court.

Manoharan, who contacted Malaysiakini following the publication of yesterday’s article on Justice Hishamudin (right) being overlooked again for elevation, said the Court of Appeal decision in his case was a landmark of sorts as this was a first small victory against a sitting PM and sitting deputy prime minister.

“If I remember correctly, no suit or legal action filed against a sitting PM or DPM in Malaysia has ever been successful. The decision by the Court of Appeal led by Justice Hishamudin was one rare occasion,” Manoharan said.

“In deciding that we have legal standing to file the suit, the Court of Appeal ordered the case to be referred to the High Court and to be heard on its merits,” the lawyer added.

Besides this, Manoharan said, the Court of Appeal also awarded RM2,000 as costs.

Najib and Muhyiddin Yassin were named in the suit in their personal capacities as PM and DPM. Muhyiddin is also the education minister.

The suit was filed by Manoharan and Uthayakumar against the PM and DPM over the government’s alleged neglect of 523 Tamil primary schools nationwide, where they wanted the Tamil schools to be fully aided, as provided for under the Federal Constitution.

Justice Hishamudin sat with recently retired judge Justice Mohamad Ariff Md Yusof and Justice Abdul Aziz Abdul Rahim in the unanimous decision.

Initially senior federal counsel Effandi Nazila Abdullah had managed to have the suit struck out, based on the issue of locus standi

A Chief Judge Malaysia never had

Manoharan agreed that Justice Hishamudin is truly Chief Justice material or at the very least, the Chief Judge of the Court of Appeal.

It is unfortunate, he said, that the government does not recognise or had halted the promotion of judges who only upheld the law and the constitution.

“Justice Hishamudin is well-versed in all matters. He is an all-rounder be it in criminal, habeas corpus, civil, trade and even land laws. I had the pleasure of appearing before him two weeks ago, in a land matter, and he is very well-versed in it.

“In that case against Najib and Muhyiddin, he gave a full day hearing in allowing parties to submit. After making a decision, he wrote a full judgment on it.

“Initially, the government (PM and DPM) wanted to appeal the decision at the Federal Court but due to the strength of Justice Hishamudin’s judgment they withdrew the appeal,” he said.

Unfortunately, Manoharan said the suit did not go on as planned as Uthayakumar (left), who was the second plaintiff, faced a prison sentence as a result of a sedition charge.

The lawyer noted that most of Justice Hishamudin’s judgments had been upheld by the superior courts.

Manoharan said he acted in the case of another Internal Security Act detainee, Badrul Zaman PS Mohamad, before Justice Hishamudin in the High Court, where the court awarded RM3.3 million for unlawful detention.

“Although the government was partly successful in its appeal to reduce the quantum of damages in that case to RM300,000, Justice Hishamudin’s judgment remains intact,” he said.

“I believe a lot of other decisions that Justice Hishamudin made have been upheld by the superior courts, for he gave sound judgments and reasoning.”

Chief justice warns those who make unfounded attacks against judiciary

Chief Justice Tun Arifin Zakaria has issued a stern warning to the public that appropriate action will be taken against those who tarnish the image and dignity of the judiciary.

His warning came in the wake of criticisms levelled at the judiciary after the Federal Court last week upheld the decision of the Court of Appeal in finding Datuk Seri Anwar Ibrahim guilty of sodomy.

Arifin said the judiciary was open to criticism but will not tolerate unfounded allegation in the social media and at public forums.

"We view with seriousness such conduct and will not hesitate to act?'" he said in his speech during the elevation of four judges to superior courts at the Palace of Justice in Putrajaya today.

Arifin said any baseless criticism against the bench would weaken the administration of justice and erode public confidence in the institution.

He said due to advancement in technology, many displayed their opinions and comments to what was happening around them in social media like Facebook, Twitter, Instagram and Youtube.

Arifin said their remarks had wide following although some were unjustified and could be questioned.

He said it was the responsibility of everyone to protect the image and dignity of the bench so that the administration of justice was unhindered.

"In this regard, I urge, especally the lawyers not to act in a way that they side step the rule of law to channel their dissatisfaction on court judgments," he added.

He said the public must also be careful and responsible in their opinions and comments on social media because of the wide repercussions.

Arifin, who last week led a five-man panel to uphol the conviction of Anwar for sodomy was coy when asked if committal proceeding will be instituted against the opposition leader for attacking the judiciary.

"That one I do not know. It is a different matter," Arifin told reporters after attending the elevation ceremony today of four judges to the superior courts.

Accordng to procedure, it is the judiciary that will have to begin proceedings since the incident happened in the court room.

He said he did not hear what Anwar uttered from the dock as he had suspended the proceeding.

"My approach is when what is uttered is not fair, I just adjourn the proceeding to calm the tense atmosphere. I did not bolt from the bench," he added.

He said he had no personal grudge against anyone and that he wanted to do his duty with utmost sincerety.

Anwar's outburst was witnessed by those in the packed court room before Arifin could decide on the sentence to be imposed.

Arifin, who delivered the 116-page judgment had earlier ruled that Anwar’ was guilty of sodomising his former aide Mohd Saiful Bukhari Azlan in 2008.

Anwar attacked the bench for "bowing to their political masters and becoming partners in crime in the murder of the judiciary".

Anwar told the bench there was something amiss when the Prime Minister's Office issued a statement barely minutes after his conviction was upheld.

"In bowing to political masters they have disgraced themselves and have become partners in crime in the murder of the judiciary," Anwar said, before Arifin asked lead defence counsel Datuk Seri Gopal Sri Ram to tell Anwar to stop.

But Sri Ram told Arifin that his client had the right to address the court, to which Arifin retorted, "yes, on the appeal but not to condemn the court".

But the opposition leader continued attacking the judiciary, adding "you had the opportunity to right the wrong but you chose to remain on the dark side".

At this juncture, Arifin and the rest of the bench members walked out.

Anwar continued to speak and shouted into the microphone: "I will again, for the third time, walk into prison but with my head held high.

"I will not be silent and will fight for freedom and justice and will never surrender," Anwar said.

The bench convened later only to affirm the 5-year jail term imposed by the Court of Appeal last year. – February 16, 2015

CJ denies he 'cabut' when Anwar opened fire in court

Chief Justice Arifin Zakaria has denied fleeing the courtroom when opposition leader Anwar Ibrahim launched a scathing attack on him and four other judges when the Federal Court upheld the latter's conviction.

"Whenever I feel it is not fair, I leave or adjourn the hearing to cool off the atmosphere. I 'bukan cabut' (did not flee)," he told reporters in Putrajaya.

The top judicial officer also said that he did not hear what the PKR de facto leader said.

Asked if he felt slighted by the comments, Arifin (left) replied: "I have no personal (feelings) for anyone (in the dock). I do it (execute his duties) based on sincerity," he added.

To questions whether there would be committal proceedings against Anwar following his statement during mitigation, the chief justice claimed that he did not know.

"That is a different matter," he said.

Committal proceedings are normally instituted by the prosecution or lawyers and not the judiciary.

Prior to sentencing, Arifin and the judges vacated the courtroom when Anwar lambasted them from the dock, accusing them of colluding with their "political masters".

Last Tuesday, the apex court dismissed the opposition leader’s appeal against his sodomy conviction.

Anwar has always maintained that the charge was fabricated by his political rivals, which the government has denied.

Apex court: Five years jail for Anwar 'not excessive'

The full written judgment convicting opposition leader Anwar Ibrahim of sodomy with a prison sentence of five years was today made available on the Federal Court's official website.

The 116-page judgment was written by Chief Justice Arifin Zakaria and is signed by him along with four other members of the bench in a unanimous decision.

The other judges were Court of Appeal President Justice Mohd Raus Sharif and Federal Court judges, Justices Suriyadi Halim Omar, Abdull Hamid Embong and Ramly Ali.

On Tuesday (left), the apex court had only initially issued a 56-page brief of the judgment when delivering its decision.

Justice Arifin in his full judgment said the five-year jail sentence meted onto the opposition leader was not excessive.

“Taking into consideration the seriousness of the offence and the fact that the appellant had taken advantage of his position as an employer of the young victim, the five-year sentence is not grossly excessive.

“We are of the view that if at all the Court of Appeal erred, it was more on the side of leniency,” he said.

On the cross-appeal by the prosecution to enhance the sentence, Justice Arifin said it was inadequate to warrant the apex court's intervention.

“We therefore dismiss both the appeals and the cross-appeal. The sentence imposed by the Court of Appeal is hereby affirmed,” he ruled.

Major points

Anwar was found guilty of commting the offence on his former aide Mohd Saiful Bukhari Azlan at a Kuala Lumpur condominium on Jan 26, 2008.

The major points of today's full written judgment are as follows:

• Complainant Mohd Saiful Bukhari Azlan is a credible witness.
   
• Investigating officer DSP Jude Blacious Pereira was transparent in cutting open the plastic bag containing the Saiful's DNA samples as retrieved by the Hospital Kuala Lumpur.
   
• These DNA samples sent to the Chemistry Department on June 30, 2008, remained intact or undisturbed.
   
• The DNA samples retrieved from Anwar Ibrahim's cell on July 17, 2008 were not illegally obtained.
   
• The trial High Court judge applied the wrong standard of test in not accepting DNA evidence by the local chemist following testimonies by the defence's foreign experts.
   
• There is nothing to discredit the evidence of the local chemist.
   
• The Pusrawi Hospital doctor who first examined Saiful was not a credible witness following his assertion that plastic was inserted into the victim's anus.
   
• The Court of Appeal applied the correct test in dismissing Anwar's allegations of a political conspiracy following the opposition leader's unsworn statement from the dock.
   
• Comparing the samples retrieved from Saiful and that from Anwar's cell, 'Male Y' is identified as the opposition leader.
   
• Spine specialist Dr Thomas Hoogland's evidence that Anwar cannot perform such sexual acts is misconceived.

Honesty in court dealings

Do we have such a weak judiciary system which cannot even uphold appointments? The Malaysian government needs to appoint serious people to become magistrates and judges.

Saravanan Forever

I am Saravanan, who is residing overseas. Last year, I filed a civil suit case in a local Malaysian court through my lawyer. 2 months back they called me for a hearing in a short period of time and I could not attend the case due to my health condition. I requested my lawyer to postpone the case so that I can attend the next case. And the magistrate was told that I was to come from overseas.

The hearing was fixed for the end of this month and my lawyer informed me 1.5 months in advance. The system in the West is not the same as in Malaysia. They are very strict and punctual in all dealings. I had to apply for a special permit to leave the country because I am under Social Security. Normally, a patient is not allowed to travel overseas. But I insisted to go because my lawyers are doing all the arrangements and I personally have to respect their efforts. This is simple understanding between human beings.

For Malaysians’ understanding, the Westerners are very particular about their appointments. For example, if they want to have dinner with someone they will make an appointment 1 or 2 weeks in advance and they will write it down in their diary. The same goes for any offices – they will write it down clearly and will not have 2 appointments at the same time. If they promise to meet us, it will definitely happen. There are 2 possibilities if they want to make changes in appointments. First, the person who is going to meet us will appoint his or her colleague otherwise they will change the date to the soonest date possible. So far, living in the West I have never seen hanky panky in legal matters. That is how they keep their country honest and punctual.

It goes the other way around in Malaysia. I was supposed to have a 2 days’ session in the court which will be the hearing too. One week earlier, I received an email from my lawyer saying “We regret to inform you that the trial for this matter which has been fixed on end of January 2015 has been adjourned by the Court to a later date. Therefore, you are not required to attend court on the above stated dates.
The reason given to us for the adjournment is that this matter will be transferred to another Court and will be heard before a new Magistrate”.

This was done after the magistrate understood that I am coming from overseas. The ticket has been bought and preparations for travel has been made. It concerns a person’s effort, money and time. Do we have such a weak judiciary system which cannot even uphold appointments? The Malaysian government needs to appoint serious people to become magistrates and judges.

The Bar Council and the Malaysian judicial body should be accountable for having bad appointments and promises. I am not living in Malaysia currently; who will be responsible for my effort and money wasted? According to my lawyer the magistrate is asking for a next date in March. Do you think it is easy to go back and come back the next month? This trip is already wasted, they are asking me to come again next month. Who is going to be responsible for my trip? There is no simple understanding in this matter.

I have been reading the latest news, for example even in some high profile cases they are changing the public prosecutor and judges according to the government’s will. It is really a shameful matter where there is no honesty in the judicial body which is supposed to hold the country’s pillar of truth. This letter is just my personal opinion, who have some guts to write about the truth. How about other people who have gone through such hassles? All my questions are to be answered by our truthful Malaysians.
I am also seeking the attention of Malaysian Bar Council.

Thank you

Gopal: We mutually agreed to part company

Former Federal Court judge and senior lawyer Gopal Sri Ram said he mutually agreed to leave the law firm of Soo Thien Ming & Nashrah as a consultant.

Denying that he was pressured to bow out from the firm following his decision to represent Anwar Ibrahim in the Sodomy II case before the Federal Court, Sri Ram said he was still good friends with the firm.

"Please do not create stories that will affect our friendship," he told Malaysiakini.

Sri Ram said this when asked about a report by The Malaysian Insider that he was pressured to leave the firm for representing Anwar, a move that has surprised many.

He said he has formed his own firm following their mutual agreement for him to leave as a consultant with Soo Thien Ming & Nashrah.

"I just wanted to do cases I liked, so that there is no conflict," Sri Ram said, without elaborating further.

Before entering the judiciary from private practice, he founded the legal firm Sri Ram & Co, whose name remained till today.

Sri Ram was the first to be appointed from private practice straight to the Court of Appeal, in 1994.

Known for delivering judgments immediately after hearing submissions from lawyers, he was not promoted for many years remained an appelate judge.

He was finally appointed to the apex court by former chief justice Zaki Azmi in 2009.

Sri Ram, who is 70, retired as Federal Court judge in 2010 at the age of 66, the mandatory retirement age for judges.

Returning lawyer, critical cases

As a returning lawyer, he appeared mostly at the Court of Appeal and Federal Court, on several cases, albeit some controversial ones, in which he was scheduled to represent Pakatan Rakyat on several election petition cases.

He also appeared for Syarikat Bekalan Air Selangor (Syabas) in its suit against the Selangor government.

However, the biggest surprise was when he appeared as the leading counsel for Anwar's defence team, taking over from the late Bukit Gelugor MP and DAP stalwart Karpal Singh, and senior lawyer and former Bar Council chairperson Sulaiman Abdullah, who had not fully recovered from a surgery.

His move to represent Anwar was heavily criticised.

Responding to the rap, Sri Ram said a lawyer is "like a cab driver, where if someone stops him, he takes them in".

Sri Ram appeared in Anwar's appeal hearing at the Federal Court, where submissions were heard for eight days and for which judgment is still pending.

Chief Justice Arifin Zakaria has hinted that Anwar's verdict could be delivered after six months, citing that judges at the upper courts are given leeway in terms of time to deliver the judgments if the case is complex.

 

Case for judicial review

The Star
Legally Speaking by Roger Tan

Is judicial review the correct procedure to challenge the validity of a statute?

IN the last two weeks, two interesting cases relating to homosexual and cross-dressing men were dealt with by the appeals courts in Singapore and Malaysia. However, the manner in which the two courts interpreted the equipollent provisions of our respective Constitution, described as consanguineous with one another as well as that of the United States and India, differed sharply.

In the Singapore case of Lim Meng Suang vs Attorney General, 2014, the highest court in Singapore, the Court of Appeal, ruled in a 101-page judgment on Oct 29 that section 377A of the Penal Code, which criminalises physical intimacy and sex between men, was not unconstitutional.

The appeals were brought by gay couple Lim Meng Suang and Kenneth Chee Mun-Leon who have been in a romantic and sexual relationship for the past 15 years, and Tan Eng Hong who had been arrested for engaging in oral sex with another man in a public toilet cubicle in 2010.

In a nutshell, the appellants had questioned the constitutionality of section 377A on the following grounds:

> that it infringed Article 9 of the Singapore Constitution (SC) that “no person shall be deprived of his life or personal liberty save in accordance with law”;

> that it infringed Article 12 SC in that “all persons are equal before the law and entitled to the equal protection of the law”; and

> that section 377A was a colonial legislation incorporated into the Singapore Penal Code in 1938 when she was a British colony and prior to the promulgation of SC.

Senior Counsel Deborah Barker (daughter of Singapore’s first post-Independence Minister of Law, EW Barker) argued for the gay couple that the right to life and personal liberty under Article 9 should also include a limited right of privacy and personal autonomy allowing a person to enjoy and express affection and love towards another human being.

Delivering the judgment of the court, Justice Andrew Phang Boon Leong ruled that the phrase “life or personal liberty” in Article 9 when read in entirety refers only to a person’s freedom from an unlawful deprivation of life and unlawful detention or incarceration. Period.

He went on to caution that foreign cases (with particular references to those decided by the Indian Supreme Court) that have conferred an expansive constitutional right to life and liberty should be approached with circumspection because they were decided in the context of their unique social, political and legal circumstances.

As regards Article 12 SC, the court applied the Malaysian case of Malaysian Bar v Government of Malaysia, 1987 in that to determine the constitutionality of a statute under Article 12 SC, the test is one of reasonable or permissible classification. It is a two-stage test which is applied only if the impugned statute is discriminatory in nature.

In other words, any law that treats people differently can still be held as constitutional if it passes this test.

Firstly, the discriminatory statute falls within a classification founded on an intelligible differentia, that is, it is capable of distinguishing persons that are grouped together from others outside the group.

Secondly, the differentia has a rational relation to the objective of the impugned statute. In the view of the apex court, section 377A has satisfied this test because it is easily discernible that it is against men who perform acts of gross decency with other men and the objective is to preserve societal morality.

As respects section 377A being a colonial legislation, the court held that section 377A constitutes part of the corpus of Singapore law as Article 162 SC provides for the continuation of pre-independence laws after the coming into force of SC.

Further, the court held that Article 12(2) SC did not expressly provide that a Singaporean could not be discriminated on the grounds of sex, gender or sexual orientation unlike Article 8(2) of the Malaysian Constitution, which expressly includes the word “gender” or section 9(2) of chapter 2 of the Constitution of South Africa, which expressly prohibits discrimination on the grounds of “race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.”

The court also dismissed the argument that a person’s sexual orientation was biologically determined and hence he ought not to have been discriminated by section 377A. Justice Phang said: “In particular, Mr Ravi (counsel for Tan) submitted that there was overwhelming evidence supporting the proposition that a person’s sexual orientation was biologically determined. This is primarily a scientific and extra-legal argument which, again, is outside the purview of the court.

We agree with the Judge that the scientific evidence on this particular issue is – contrary to what Mr Ravi submitted – unclear inasmuch as there is no definitive evidence pointing clearly to one side of the divide or the other. In any event, as just mentioned, the court is not in a position to arrive at a conclusive determination on this issue. Again, this argument should – if at all – be addressed by the legislature instead.”

All in all, the apex court is saying, regardless of whether Singapore judges are described as timorous souls or bold spirits, the court cannot assume legislative functions to become a mini-legislature, and that there is nothing the court could do to assist the appellants whose remedy should lie in the legislative sphere.

Now to the Nov 7 decision of our Court of Appeal in Muhamad Juzaili Bin Mohd Khamis & Ors v Negri Sembilan State Government, 2014. In this case, the court struck down section 66 of the Syariah Criminal Enactment (Negeri Sembilan), 1992 which criminalises Muslim men for cross-dressing as unconstitutional and therefore void for being inconsistent with the supreme law, namely Articles 5 (right to life and liberty and equivalent to Article 9 SC), 8 (equality before the law and equivalent to Article 12 SC), 9(2) (freedom of movement) and 10(1)(a) (freedom of expression) of the Federal Constitution.

First, I do not think this case involves a conflict of syariah and civil laws albeit it deals only with Muslim men who suffer from gender identity disorder (GID). It is also a non-issue that under the Constitution, only the Federal Court is seised with constitutional jurisdiction to determine the competency of both the federal and state legislatures to enact laws and their validity.

Hence, the issue is very much whether the Court of Appeal’s decision is tantamount to trespassing into the legislative sphere.

At first glance, critics will argue that the Singapore case is an example of judicial restraint at its worst by deferring to the legislature, and the Malaysian case, judicial activism at its best which may, however, also be criticised as bordering judicial populism or judicial excessivism!

It is said that the Court of Appeal was merely applying extant interpretation adopted by our superior courts when dealing with fundamental liberties provisions of the Constitution.

Most significantly, the court followed earlier judicial decisions which adopted Indian constitutional jurisprudence that the right to life and liberty under Article 5 should include right to live with dignity and right to livelihood and quality of life.

The court also held that there was a breach of Article 8(2) on gender discrimination because the impugned section 66 dealt only with Muslim men cross-dressing while Muslim women who cross-dress are not prohibited.

This has far-reaching implications because civil laws against male homosexuality and oral sex under the Penal Code can also be challenged on a similar basis even if they have passed the reasonable classification test. For example, section 377A of our Penal Code criminalises acts of performing fellatio but not cunninglingus!

That said, devoid of any disrespect to GID sufferers, as a lawyer and I believe for many colleagues of mine, law students and academics, it would be interesting to see how our Federal Court deals with the following issues, if advanced, upon appeal:

> Is judicial review the correct procedure to challenge the validity of a statute for being unconstitutional when there is already a procedure for this as set out in Article 4(4) (read together with Article 128(1)) of the Constitution, that is, it can only be determined by the Federal Court after leave from a Federal Court judge has first been obtained? That was exactly how the validity of section 53(1) of the Syariah Criminal Enactment (Negeri Sembilan), 1992 was referred to the Federal Court in Fathul Bari bin Mat Jahya & Anor v Majlis Agama Islam Negeri Sembilan & Ors, 2012 after the first petitioner was charged and the second petitioner also charged for aiding and abetting the former in conducting a religious talk to non-family members outside his residence without a tauliah (licence) from the Tauliah Committee.

> Should Malaysian courts now be more wary in further adopting the Indian constitutional jurisprudence after taking into account our mores and local circumstances?

> Will our apex court follow the above decision of the Singapore Court of Appeal in that this is a matter best left to the legislature to come to grips with?

> What is the definition of “gender” in Article 8(2) of the Constitution? Is it immutably only a male or female or a third gender has been created to include, for example, a transgender because it is a natural and intractable attribute and disposition just like how the Muslim nation of Bangladesh has decided to recognise them as a third gender called Hijras?

The writer, a senior lawyer, appreciates that this topic evokes strong passion and emotion but this article is strictly and solely written from a legal angle. The views expressed are entirely the writer’s own.

Public caning a no-no, say former judges

Malay Mail
by IDA NADIRAH

PETALING JAYA, Nov 21 — Former judges said caning of young offenders in an open courtroom was unheard of during their days on the Bench.

Former Court of Appeal judge Datuk Shaikh Daud Ismail he had never come across or meted such punishments.

He also questioned why the Kuala Lumpur Sessions Court had called Mohamed Shaznee Jahn Mohamed Yasin, 19, and Redzohaan Abdullah, 20, who had been found guilty of gang robbery, as they had already been sentenced to 18 months and 24 months in jail, respectively.

Shaznee Jahn received seven strokes, and Redzohaan eight, in front of prison officers, a medical doctor, and those in the court gallery, including reporters.

“If they had been sentenced several months ago, what was the purpose of the duo returning to the courtroom?” Shaikh Daud asked.

“Why wasn’t the caning done in prison as the offenders were serving time?”

Shaikh Daud said there were numerous grey areas on why the caning was carried out within the court’s premises before a public audience.

“The court should have explained to the offenders if the caning was done as a replacement for their jail terms,” he said.

Retired Court of Appeal judge Datuk Low Hop Bing said the caning should have been carried out by the Prisons Department within the prison compound.

“It is unusual for it to take place inside the court and it was not proper for it to be done in public,” he said.

Low said even if the offenders had not appealed and were satisfied with the sentence, the caning should have been executed in prison itself.

A former High Court judge, who declined to be named, said he could not recall such occurrence taking place during his time.

He said if the High Court, which was higher in authority than the Sessions Court, suspected something amiss in this case, they could retrieve the case papers and rectify it.

“The High Court could inform the Sessions Court that what had taken place was not right,” he said.

Teacher awarded RM300,000 in damages for being denied employment while pregnant

he Star
by MAIZATUL NAZLINA

SHAH ALAM: A 32-year-old teacher who sought a declaration that pregnancy was not a reason for her to be denied employment, has been awarded RM300,000 in damages by a High Court here.

High Court senior assistant registrar Ahmad Rizki Abdul Jalil awarded Noorfadilla Ahmad Saikin RM12,907.68 for loss of earnings, RM2,296.10 for loss of Employees Provident Fund (EPF) benefits, RM912.71 in EPF dividends and RM25,000 for pain and suffering.

The court also instructed the Government to pay RM5,000 in costs.

Noorfadilla’s counsel Honey Tan said that Monday was fixed for assessment of damages.

Tan said the Court had awarded the mother of four damages for breach of Article 8(2) of the Federal Constitution that prohibits gender discrimination.

The Court of Appeal had on June 28, last year, upheld the landmark decision made by the Shah Alam High Court after the Government withdrew its appeal. However, no reason was given.

A three-man panel, led by Justice Datuk Clement Allan Skinner, then struck out the appeal and ordered the Government  to pay RM5,000 in costs.

On July 13, 2011, the Shah Alam High Court ruled in favour of Noorfadilla, who sought a declaration that pregnancy was not a reason for her to be denied employment as an untrained relief teacher.

The court then ordered an assessment of damages for the breach of Article 8(2) of the Federal Constitution, which stated that there should be no discrimination against anyone based on gender.

It was the first time that damages were awarded for an infringement of the article.

Noorfadilla had filed the suit on May 7, 2010, seeking a declaration that the termination of her contract because she was three months’ pregnant was illegal.

She named Hulu Langat district education officers Chayed Basirun and Ismail Musa, Selangor Education Department director Dr Zahri Aziz, the Education Ministry director-general, the Education Minister and the Government as the defendants.

Noorfadilla was offered a position as an untrained relief teacher on a month-to-month basis starting in mid-January 2009.

However, the offer was withdrawn when she informed the Hulu Langat district education office that she was pregnant.

The landmark decision was later nominated for a Gavel award in Women’s Link Worldwide, which works to ensure gender equality around the world.

Let Malaysians support justice, freedom beyond borders, Anwar tells Putrajaya

Opposition leader Datuk Seri Anwar Ibrahim today urged Putrajaya to stop treating activism against human rights violations in other countries by Malaysians as objectionable, as it does not interfere with other nations’ affairs.

Throwing his support for those highlighting atrocities against Tamils in Sri Lanka, the PKR de facto head said Malaysians should be allowed to help promote freedom and justice wherever abuses occur.

“If there is gross injustice, the killings must be stopped,” he said at the closing of the Penang International Tamil Conference in George Town. “That is a consistent, coherent principle.”

In a similar vein, he said Malaysian should also offer support to any marginalised ethnic group, like the Indians, in their own country.

“The Indian problem in terms of poverty, marginalisation, poor access to education, is a national problem. It is not an Indian problem,” he said at the conference organised by the Penang Society for Advancement of Tamils.

Also present were Deputy Chief Minister (II) Prof P. Ramasamy and special guest Vaiko, a veteran politician from Tamil Nadu who is general secretary of Marumalarchi Dravida Munnetra Kazhagam (MDMK) party.

At a press conference later, Anwar said authorities, particularly the Home Ministry, must give space for people to present their human rights causes, particularly for strong and compelling cases that have “incontrovertible evidence”.

“If we want the Indians or Tamils to be concerned about Gaza (where Palestinians are oppressed), we must also show some concern about the Tamil's plight,” he said.

“If as a Muslim I want to make sure the Muslims are not discriminated elsewhere, I don’t want Hindus to be discriminated in my country,” he added.

Commenting on government actions, such as the police move to stop the screening of the documentary "No Fire Zone: The Killing Fields of Sri Lanka" in Kuala Lumpur last year, Anwar said it is disconcerting that there are growing signs of intolerance in Malaysia.

“What can’t you allow some members of a community – it can be Tamils, it can be others – who are trying to voice their concerns about the atrocities in Sri Lanka?” he said.

“If the Sri Lankan authorities or government want to counter they can always give their view, their explanation.

“But how can you deny an issue which is known and accepted by the international community?” Anwar said.

Ramasamy said the conference, which also saw participation by non-Indians, has shown that non-Indians can also speak out about Indian issues. He said it represented moving away from any “narrow-minded” ethnic approach where groups only fight for their own causes.

Ramasamy said he himself was involved in the international peace talks for Aceh a decade ago. “People were wondering what a Tamil has got to do with it,” he said.

Meanwhile, Vaiko said the conference today adopted the "Penang Declaration". Among its eight resolutions was a call for a United Nations-monitored referendum for a sovereign Tamil Eelam, an independent state on the island of Sri Lanka.

It said the referendum should be conducted among Tamils descended from the northern and eastern regions of the island of Sri Lanka, as well as the Tamil diaspora from there, including refugees.

Vaiko said the move was encouraged by the recent independence referendum in Scotland, which has not even seen the level of persecution or oppression as during the recent genocide of Tamils in Sri Lanka.

“The clarion call has been given from this Penang Conference. We are hopeful this will lead to the twilight, the twilight to the suffering of the Tamils," he added.

South African delegate Pregasen Padayachee said the Solidarity Group for Peace and Justice in Sri Lanka, of which he is the secretary, together with the South African Tamil Federation will hold the next international Tamil conference in Durban either in late 2015 or early 2016. – November 9, 2014.

- See more at: http://www.themalaysianinsider.com/malaysia/article/let-malaysians-support-justice-freedom-beyond-borders-anwar-tells-putrajaya#sthash.QjiioFhY.dpuf

Ahmad Shabery: People still have faith in the judiciary

When Malaysians flee to get justice

In the same week that Malaysia won a non-permanent seat in the United Nations Security Council, a Malaysian shockingly fled Malaysia to seek asylum and protection from what he called oppression from authorities and gangsters.

Activist Ali Abd Jalil is the second Malaysian in as many weeks who ran away, citing oppressive laws and lacking faith in the system to protect his rights.

Posting in his Facebook page, Ali said "Now I am in Sweden, looking for asylum… the Malaysian government and sultan treated me like rubbish.

"I have been threatened by gangsters and racist Malay groups in Malaysia. Malaysia is not safe for me, police and gangsters are following me all the time."

Ali faces three sedition charges for allegedly insulting the Johor royalty and the Sultan of Selangor in his Facebook postings.

He has been accused of posting seditious remarks on a Facebook page called "Kapitalis Bangsat" that allegedly belittled the Johor sultanate.

Another Malaysian, Alvin Tan, who is facing criminal charges under the Sedition Act as well as the Film Censorship Act for controversial online uploads, including a photo deemed insulting to Islam on Facebook, is seeking asylum in the United States.

Ordinarily, these two are facing criminal charges and that should be the end of that. But there has been a rise of vitriol and venom against those who allegedly cause offence to be taken by certain groups.

To say that the police have been quick to stem such toxicity in the bud as they are in looking for Ali and Alvin would be too naive.

Which is why, rightly or wrongly, these two men have left the coop because they believe they won't get justice in Malaysia.

This is a major embarrassment for the Najib government, which has been at pains to paint the country as a moderate nation, and that its election to the UNSC is due to its moderation and peace-loving values.

And no amount of speeches at the UN or in international events can wipe away this blemish – that two Malaysians do not believe they will get justice in Malaysia.

Perhaps we think we are, and perhaps we do that abroad but in Malaysia, what we can term moderation in the broadest of sense that does not appear to exist.

Malaysia has seen the rise of a few groups which use hate speech to run down and threaten people, to the extent that Muslims who touch dogs are deemed apostates and anything Western is seen as a conspiracy against the Malays and Islam.

What more for the likes of Ali and the case against him.

Not only is he facing a trial, he is facing groups that have threatened his life. And nothing much has been done about it. Hence, the decision to run away.

No one should condone Ali's alleged offence. But no one should also condone those who want to harm him for what he has done.

Malaysia is in the UNSC to promote peace and moderation. It must also be seen to do that in the country. If not, we are just a country that speaks from both sides of the mouth.

No one is going to listen, let alone respect Malaysia if we allow this hypocrisy to continue. – October 26, 2014.

- See more at: http://www.themalaysianinsider.com/malaysia/article/when-malaysians-flee-to-get-justice#sthash.OEBb10iJ.dpuf

Doubts in administration of justice

The Star
by K.C. VOHRAH

THE recent episode in Parliament when Minister in the Prime Minister’s Department Nancy Shukri gave a written reply to a parliamentary question in relation to the Malay Bible burning threat by Datuk Ibrahim Ali raises a number of concerns.

The minister in a written reply stated, inter alia, that Ibrahim was not charged under the Sedition Act because the police concluded that he was merely defending the sanctity of Islam and had not intended to create chaos with this statement.

The written statement was from the Attorney-General’s Chambers where the Attorney-General (A-G) is the adviser to the Government on legal matters under Article 145(2) of the Constitution.

The first concern is the reliance by the A-G Chambers on the finding that Ibrahim was not intending to create chaos, to exculpate him from a charge under the Sedition Act.

However, section 3(3) of the Act clearly states that “(for) the purpose of proving the commission of any offence under this Act the intention of the person charged... shall be deemed irrelevant if in fact the words... had a seditious tendency”.

Again in relation to Ibrahim’s statement in the context of the words used, is there not a “seditious tendency” under the section 3 (1)(d) where “seditious tendency is defined as being a tendency” to promote feelings of ill-will and hostility between different races or classes of the population of Malaysia...”, an offence under section 4 of the Act?

The second concern is that it would appear that the police had concluded that there was no intention to create chaos. How the police came to that conclusion shows that the provisions of the Sedition Act had not been understood or studied by the officers who compiled the investigation papers (collectively called the IP) before they concluded that no action should be taken against the man.

The third concern is that under Article 145(2) it is the duty of the A-G to advise, among others, any minister on legal matters. The A-G is the ultimate legal adviser to the Government and he cannot afford to be wrong.

The A-G Chambers will answer a parlia­mentary question in the form of an opinion. An opinion will comprise a statement of facts and the application of the law on the facts.

In our context the A-G Chambers relied on the police for the facts of the case. On the issue of law and its interpretation the A-G Chambers appeared to rely on the opinion of the police in the IP, as well, that no offence had been made out under the Sedition Act. That clearly is wrong.

I had been with the A-G Chambers for 16 years in the 70s and early 80s and the protocol for dealing with parliamentary questions was strict. An answer had to go through many layers of scrutiny and approval before being sanctioned by the A-G for release. What has happened to the strict procedure in the A-G Chambers?

Admittedly the A-G Chambers in my days was, and more so now is, never idle as the volume of problems that come to the chambers for legal opinion is enormous.

But in matters relating to parliamentary questions, truthful and accurate statements of law are expected in the august body of Parliament as the A-G is the ultimate adviser of the government in legal matters.

There needs to be a re-think probably of the protocol relating to answers to parliamentary questions especially in criminal law matters, and the decision on the law should be for the A-G Chambers and nobody else, except for the courts.

There are other concerns but perhaps I should deal with the biggest concern. It is with regard to the perception of the role of the A-G (as Public Prosecutor) in the legal administration of the country.

The A-G under Article 145(2) has the power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for an offence.

The power is an awesome power which has to be exercised bona fide and with great professionalism and care. And any perception that the A-G when exercising such powers, is biased, selective or acts under ministerial pressure or pressure from any group will bring disrepute to the office of the A-G and cause grave misgivings as to the fair administration of the legal system. And when mistrust arises in regard to the exercise of such powers it would be to the discredit of the Government.

Clearly, the A-G Chambers has to be circumspect in regard to police IPs when dealing with the issues of fact and, especially when dealing particularly with parliamentary questions.

The A-G Chambers must also be solely responsible for the interpretation of the law in accordance with the tenor of the legislation and the relevant court-decided cases on that law; and the A-G cannot abdicate that duty to any other body, though the courts will have the last say on it.

With these concerns in mind, in relation to the Sedition Act, the A-G should review the cases where persons have already been charged in court bearing in mind that:

(1) The Sedition Act is an oppressive law and that many jurists and scholars consider sedition (based on common law seditious libel) as obsolete. Seditious libel came during a period when the divine right of rulers was not only accepted but believed to be necessary; rulers who dispensed laws were above questions and criticism of rulers was considered sinful as well as unlawful.

Lord Denning in Landmarks in the Law (1984) stated at p 295:

The offence of seditious libel is now obsolescent. It used to be defined as words intended to stir up violence, that is, disorder, by promoting feelings, of ill-will or hostility between different classes of His Majesty’s subjects.

But this definition was found to be too wide. It would restrict too much the full free discussion of public affairs... So it has fallen into disuse for nearly 150 years. The only case in this century was R. v. Caunt... when a local paper published an article stirring up hatred against Jews. The jury found the editor Not Guilty.

In the Canadian Supreme Court decision of Boucher v The King [1951] SCR 265 at 285-286, Mr Justice Rand held:

Up to the end of the 18th century it (crime of seditious libel) was, in essence, a contempt in words of political authority or the actions of authority.

If we conceive of the governors of society as superior beings, exercising a divine mandate, by whom laws, institutions and administrations are given to men to be obeyed, who are, in short, beyond criticism, reflection or censure upon them or what they do implies either an equality with them or an accountability by them, both equally offensive.

(2) That once a person is charged for an offence under the Act, looking at the state of case law in Malaysia, there is no defence that can normally be taken for offences, say, under the Penal Code or other acts creating offences. So it appears there can be no defence even of truth, lack of intention, presence of an innocent or honourable intention, absence of consequent harm, or even a lack of possibility or potential for consequent harm. Prove the utterance of words as “seditious” (defined circularly and widely) and there is no defence to the utterance. Very oppressive in the 21st century. And to think this is the law in Malaysia, a democratic country.

(3) That the A-G before exercising his discretion whether to charge a person for sedition must ignore pressure from any quarter, political or otherwise, the noisy and the cantankerous, and the well-meaning and well-intentioned groups (who have not seen the oppressive implications of the law), and focus on whether it is reasonable to charge such a person in the context of all relevant circumstances in an age of “disagreement in ideas and belief on every conceivable subject” which are the essence of our life in modern Malaysia pushing on for developed status in 2020.

Let us hope that the A-G, who had indicated he would review the cases of those charged for sedition, will do so with a group of officers who have researched the history of sedition law, its very rare use in other common law countries including Australia, Canada, India, Ireland, New Zealand, South Africa, United Kingdom and the United States and the reasons why that is so.

Using such reasons and in the context of reasonableness it is hoped the charges against a slew of persons including academics will be withdrawn. It boggles the mind that even intellectual discourse can be considered seditious.

K.C. VOHRAH

Kuala Lumpur

Hindraf disgusted at former judge’s racism

P Waythamoorthy says judiciary selection must be overhauled.

Athi Shankar, Free Malaysia Today

Hindraf national chairman P Waythamoorthy said he was disgusted with a statement made by former Court of Appeal judge, Mohd Noor Abdullah, over the weekend.

He said Mohd Noor’s remarks on the so-called non-existent “social contract” clearly showed the ex-judge’s racist and biased views against non-Malays and non-Muslims in the country.

Waythamoorthy was adamant that the term “social contract” was created by ultra Malays to divide communities and perpetuate contemptuous feelings among the ethnic groups.

“Hindraf is disgusted that these kinds of lies and perpetuation of racial ill feelings come from a former top judge of the country.

“The ex-judge promotes the Malay supremacist agenda. He has clearly been a racist in the closet whilst serving on the bench,” Waythamoorthy said.

“The government should overhaul the selection process to ensure that judges are not racist and not bias, have untainted integrity and are fully committed to protect the rule of law and parliamentary democracy,” he told FMT here today.

Waythamoorthy, who had perused thousands of documents on Malaya independence, insisted that a social contract was never mentioned in the pre-independence talks.

“Nothing was ever stated on a social contract in the pre-independence talks between then Malayan leaders and the British colonial government.

“When the independence talks took place, all three communities were given equal representation and footing.

He said it was a total lie that Indians and Chinese were given citizenship in return to agreeing to Malay privileges, adding, “A social contract does not exist at all.”

“It’s just their imagination to justify racist policies,” said Waythamoorthy.

He said it was unimaginable how Mohd Noor had meted out justice to non-Muslims and non-Malays when his knowledge of the constitution and its principles was so shallow and the result of a racist mindset.

He rubbished Mohd Noor’s claim of the “reasonable rights” of non-Malays and said that the ex-judge was misleading the people on the historical development of the Constitution.

“There is only one right and that is the absolute right of every citizen without racial or religious discrimination as clearly stipulated in Article 8 of the Constitution,” Waythamoorthy said.

He said many Malaysians now questioned where and how Mohd Noor obtained his law degree and whether there was indeed a grave mistake committed by the selection committee in appointing him as a judge.

“It clearly shows there is an urgent need to overhaul the selection process of judges to avoid and weed out individuals with racist mindsets and tendencies,” he said.

“It’s time for more non-Malays, non-Muslims and Borneo natives to be appointed as judges,” he said.

Don’t let civil courts touch Shariah rulings, syarie lawyers urge CJ

The Chief Justice should direct civil courts not to entertain conversion and custody cases previously
decided under the shariah system, said the Malaysian Syarie Lawyers Association.

It said this would prevent the apparent jurisdictional conflicts on such matters.

The group’s president, Musa Awang, suggested Chief Justice Tun Arifin Zakaria issue the circular in accordance with the decision by the National Fatwa Council in 2009, which decided that minors are automatically Muslims and must be raised as such when a parent converts into Islam,.

“Article 12(4) of the Federal Constitution also stated that the religion of an individual below the age of 18 is decided by a parent, and that does not need to be amended,” said Musa in statement to Sinar Harian.

Musa was responding to the Seremban High Court’s decision in granting S. Deepa, a Hindu, the full custody of her two children, who were converted by their father N. Viran who now goes by Izwan Abdullah.

Izwan, had snatched their six-year-old son two days after the custody was awarded insisting that he too had full rights to the children based on previous Shariah Court order.

Authorities declined to pursue the Muslim convert father, citing the conflicting orders.

Musa insisted that the orders issued by both courts have equal standing.

Civil lawyers pointed out, however, that it was unconstitutional for the Shariah court to decide matters concerning non-Muslims.