Reasons why Malaysian Judiciary is Unfair
The Malaysian Insider
Friday May 22 2009
Mohamed Hanipa Maidin sits on the Pas central committee and is the Pas
legal adviser. He is also a lawyer who blogs at peguampas.
blogspot.com
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Perplexing judiciary in Perak lawsuit
MAY 18 — As of today it is undisputable that Datuk Seri Zambry Abdul
Kadir is a confirmed unlawful mentri besar of Perak. On the other hand
Datuk Seri Nizar Jamaluddin is a confirmed lawful mentri besar of
Perak. That is the gist of the high court's decision delivered by
Justice Datuk Abdul Aziz on May 11, 2009.
How about the stay order granted by a single Judge of the court of
Appeal on May 12, 2009 ? Does the stay order invalidate the high
court's decision? The short answer is a resounding no.
The stay order merely bars the lawful mentri besar from carrying out
his lawful duties and in turn allows the unlawful mentri besar to
continue performing his unlawful duties. That is the gist of the court
of appeal's decision delivered on May 12, 2009.
When the high court judge made a decision allowing all the prayers
sought by Nizar in his judicial review application, the learned high
court judge, to his credit, gave a reasoned judgment.
Therein he discussed in great detail all the points canvassed by all
parties in their respective submissions. Armed with such a reasoned
decision, the people are not kept in the dark as to the reasons why
Nizar won the suit.
On the contrary there were glaring absences of reason as to why the
stay order was granted to Zambry thus the court of appeal has kept the
people in the dark. Justice demands a reasoned judgment from the court
whenever it allows or dismisses any application made by any litigants.
In all Perak suits which have landed in the highest court so far,
neither the court of appeal nor the Federal court paid attention to
this vital aspect of the court's process namely the preparation of
reasoned judgments.
No judgment was prepared when the court of appeal allowed V.
Sivakumar's appeal against the decision of Ridzuan J. denying
Sivakumar's right of appointing his own solicitors.
When the court of appeal dismissed Nizar's appeal against the decision
of Justice Lau Bee Lan which allowed the Attorney General's
application to refer Nizar's suit to the Federal court, the court of
appeal also failed to write any grounds of judgment.
When the Federal court overturned Lau Bee Lan's decision allowing the
Attorney General's application to refer Nizar's suit to the Federal
court, the apex court could not be bothered to prepare written grounds
of judgment setting out the reasons why the high court's decisions
deserved to be reversed.
The request made by Nizar's lawyers for a written judgment was only
met with the following reply by our judiciary : " the court will not
provide any ground of judgment."
It is common knowledge especially amongst the legal fraternity that
the issue cropped up in the Federal court involved a very important
and fascinating constitutional issue. The utter failure of the apex
court to prepare a reasoned judgment in such an important case speaks
volumes of judicial dexterity.
When the Federal court allowed Zambry's suit against Sivakumar, once
again the Federal court did not write any written judgment. Everybody
was expecting that the Federal court would prepare a reasoned decision
for such an important decision.
After all the Federal court disregarded the doctrine of separation of
powers thus nullified the earlier five judgments given by Malaysian
judges of impeccable integrity. Unfortunately no reasons were given as
to why the court came to that finding.
In view of the above scenario, it came as no surprise when Datuk Ramly
J. failed to prepare any written judgment when he granted the order of
stay favouring Zambry. To date we are unable to know what are the
special circumstances necessitating the grant of such a stay order.
The argument that if Nizar was not barred from acting as a lawful
mentri besar , he would dissolve the state assembly is, with due
respect, misconceived in law. It presupposes the power to dissolve the
state assembly is vested in Nizar. Definitely such a reason does not
qualify as special circumstance justifying the order of stay.
Perak crisis has attracted media frenzy domestically.
The lawsuit deals with many constitutional issues of great
consequence. In other jurisdictions one would expect the court in
particular the apex court takes pride in preparing a ground of
judgment.
Writing a ground of judgment is part of judicial process hence it must
be seen as a sacrosanct duty and exalted task. Unfortunately the Perak
lawsuit seems to suggest that this vital judicial exercise is no
longer seen as a lofty act done with profound enthusiasm.
When the highest courts of the land failed to prepare a judgment in
such an important lawsuit , the only conclusion which may be
justifiably drawn is that the courts are not fully confident to share
the reasons with the people at large.
The old adage that justice must not only be done but must manifestly
be seen to be done has unfortunately escaped the attention of our
judiciary.
It is germane here to share the following sentiment of former Lord
President Tun Salleh Abas when he gave the following advice to his
then judicial brethren
"We hope that Judges should endeavour to write their grounds of
decision and take delight in this aspect of judicial work as a matter
of personal pride and satisfaction and not as a burden. Failure on the
part of judges to write their grounds of decision will certainly
undermine their authority to insist upon magistrates and presidents of
sessions court to write theirs. If the practice of not writing grounds
of judgment is widespread the system of administration of justice will
tumble down."
Nizar and by extension the people of Perak are not only perplexed by
the failure of the court to prepare a judgment but also overwhelmed by
the conduct of our judiciary in failing to fix an early date for
Nizar's application to set aside the stay order.
The judiciary is bound to explain to the public why Zambry could
easily get the hearing date on the same day he filed his application
for a stay of execution. Zambry filed his application on May 12 and
obtained the hearing date and in turn the stay order on the same date.
Nizar filed his application on May 14 and was only given the hearing
date on May 18 despite having a certificate of urgency. The hearing
date which was initially fixed on May 18 was subsequently changed to
May 21 — the same day the hearing of Zambry's appeal. If this is not
discriminatory, please do tell what is?
By fixing Nizar's application on the same day of Zambry's appeal, the
people perceive that that the rule of the game has been unduly
changed. It is no longer seen as a fair game governed by transparent
and unbiased umpire.
The public perception is that that the umpire namely the court is seen
to be more sympathetic to Zambry than Nizar. The court should have
avoided doing something which led to such a negative perception.
The people need to know why the court failed to appreciate the urgency
of Nizar's application as it did to Zambry so much so Nizar's
application has now become academic and fruitless. Why there is a need
to have Nizar's application heard on May 21 when Zambry's appeal is
also fixed on the same date. Like it or not, this is a mockery of the
first order.
Whatever reasons given by our judiciary on such a regrettable
incidence, it is very hard for the people to believe that the dented
image of our judiciary has been duly and fully repaired. Under such
circumstances, can the people be faulted if they have misgivings about
our judiciary?
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