Without Fear and Favor

Wednesday, September 6, 2006

In a recent case of Datuk V. Kanagalingam v Euromoney Publications PLC & Anor,the learned High Court judge observed that the Federal Court that heard the appeal of Ayer Molek was unlawfully constituted. The panel consisted of the Chief Justice, Tun Eusoff Chin, Datuk Zakaria Yatim, a Court of Appeal Judge and a High Court judge, Datuk Pajan Singh Gill.

His lordship in his remark observed that the panel was unconstitutional, as Section 74 of Courts of Judicature Act 1964 requires that a Federal Court shall consist of 3 legally competent judges, whereas Article 122(2) of the Federal Constitution provides that only Court of Appeal judges may be nominated to sit as Federal Court judge. In short, Datuk Pajan Singh Gill was not qualified to be there at that very time.

The interesting part in the Ayer Molek case is that The Court Of Appeal whacked the counsel, Datuk VK Lingam for his act which is considered to be an abuse of court process and the court observed that the counsel was picking the judge that he want, as the case should had commenced at the Commercial Division of the High Court at Kuala Lumpur, instead of the Appellate and Special Powers Division.The concerned High Court judge then was Datuk Azmel Maamor (at present is a Federal Court judge). The Court of Appeal in a very careful words made a remark that it is incumbent for the trial judge to transfer the case to the right division upon perusal of the pleadings, or in an alternative verse, Datuk Azmel should have transfer the case to the right division when he discovered the menace of the counsel.

However, this remark was turned down by the "Federal Court", which seemed to justify the action of the High Court judge.

The aforementioned case of Datuk VK Lingam v Euromoney is about defamation.The plaintiff claimed that the defendants had defamed him. The court however observed that the plaintiff cannot claim based on his own wrong. The court referred to the judgment made by the Court of Appeal instead of the one made by the highest court, the Federal Court as the judge found that the Federal Court was not constitutionally constituted.

It is a brave remark by a lower court to say that an apex court was not legally constituted. What more if the court was presided by the Chief Justice at the material time. Was the Chief Justice ignorant of law?

One may say that we are human and we make mistakes all the time. But this type of mistake is unforgivable as it was made by the one who is assumed to be the best of his brethren, as he is the head of all judges in the country. Furthermore, the other 2 judges, one of Court of Appeal and another one belongs to the High Court, had they also forgot the law? These people are mingling with the law all the time, for God sake!

Fortunately there is someone with sound mind and sense of justice to correct this wrong proposition. This someone is Justice Dato’ Mohd Hishamudin Bin Mohd Yunus . I believe he has done what the legal people call "discharging the duty without fear and favor".

A Gloomy Past

Friday, September 1, 2006

A judge was sacked from the top position of judiciary 18 years ago. With him, another 2 apex court judges were also sacked from their office. The event was so controversial as it is still being debated, whether the judges were rightly and justly sacked from their office.

Responding to this matter, a retired Chief Judge Of Malaya, Tan Sri Anuar is of view that the matter shall be reviewed, for the benefit of the public, so the public confident on our court can be revived.

A retired Court of Appeal judge, Datuk Shaik Daud Ismail,is of opinion that the epidemic of non confidence in judiciary emerged after the sacking of the 3 judges of the apex court. Datuk Shaik Daud in his farewell speach in 2002 said,

'It used to be that the tinting of judges' cars was for my security but now I say it is to hide my embarrassment.'

Such feeling emerges as result of public non confidence on the judiciary.

The victim of the vexious action himself, Tun Salleh Abas had broke his 18 years silence by his call for the matter to be reviewed. He called for amendment of article 121 of the Federal Constitution, where the vesting clause shall be reinstated, as it was before the article is amended in. The hardest thing to hear is the fact that this person who was the Head of the judiciary is disillusioned with the law. Worst than that, a very learned and notable person who his passion about law is widely known and once a Supreme Court judge, Tan Sri Eusoffe Abdoolcader was also disillusioned with the law and such had cost his life.

One of the greatest architects of our judiciary, the late Tun Suffian Hashim once expressed his view that the 1988 crisis had destroyed the values that was embedded in the judiciary, which had prop up the prominent reputation of the judiciary as it was before the crisis. Many people refer to the pre 1988 judiciary as the golden age of the judiciary, where the organ was led by Tun Suffian Hashim, Raja Azlan Shah (as His Majesty then was) and lastly Tun Salleh Abas.

Why must we look at the past? It is because the past had made what we are today...
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