Book Review
Nose
divethe crippling of justice
|
Book Review
Nose
divethe crippling of justice |
BEFORE 1988, our courts were held in high regard throughout the Commonwealth. Their independence was often likened to that of the courts of India. Singapore judges, highly paid but presiding over deferential courts kow-towing to totalitarian intolerance, were heard to whisper envious understatements, such as, "Your judgments are better than ours." Tunku Abdul Rahman could justly point with pride to the case where his minister of education, Abdul Rahman Talib, sued the opposition's D R Seenevasagam MP for libel and lost. When the Dr Mahathir regime contrived the ousting of Tun Salleh Abbas, the Lord President of the final court of appeal, the reputation of our courts took a severe hammering. What graphically illuminated the fall were three cases: the Anwar Ibrahim trials, the Boonsom cheating case, the Ayer Molek share transfers, and the jailing of the lawyer Zainur Zakaria for contempt. "Judging the Judges" by former court of appeal judge, Dato N H Chan, has done a public service by putting these court scandals on record. The Boonsom case is denounced by Dato N H Chan as "the most outrageous injustice." A crook forged the signature of a Thai woman on the land transfer form and had her land in Penang transferred to a developer. The owner sued but the Federal Court held that the transaction was good despite the forgery. While the decision could be charitably described as "a lack of understanding of plain English," what was startling was that the carefully worded judgment of the court of appeal, that a forged document gave no title, was ignored. Worse still, the court failed to mention even one single precedent on the same section of the National Land Code. This curious absence of reasoning is unprecedented. Even the Chinese emperors of old beheaded entire families based on reports of reliable ministers, even if the reports were made up. Dato. N H Chan is scathing. "How then could Chief Justice Eusoff Chin and P S Gill, Federal Court Judge, both judges of the highest court in the country, fly in the face of the weighty and unanimous opinion of lawyers who are more eminent than them? In their conceit they did not even bother to consider the opinion of these jurists. I am not saying that they could not do so. Of course, they could disagree, but in doing so they must say why they disagree ... Instead they chose the path of Humpty Dumpty. In effect what they are |
| saying
is that the words in
sub-section (3) of section 340 of the National Land Code mean what they
choose them to mean and not what the words really mean." The Ayer Molek case was about the registration of shares. The applicant in an ex parte (without the other side) application asked the court to order the company to register his shares in it although he had no transfer form to support his application. Despite the Companies Act laying it down that." a company shall not register a transfer of shares or debentures unless a proper instrument of transfer in the prescribed form has been delivered to the company" a transfer was ordered, The other side then applied to set aside the order but the judge postponed the hearing to a date which was after the date he had given the company to comply with his order for registration. He refused an application to stay his order. Mr Justice N H Chan who was a member of the court of appeal hearing the appeal said that the judge had effectively deprived the other side of their right to set aside the ex parte order. The Court of Appeal decided that "This misuse of the court's procedure ... is manifestly unfair to a party to litigation before it..This court, therefore has a duty to exercise its inherent power to prevent misuse of its procedure." The court ordered that pending the outcome of the appeal the party who was now the registered owner of the shares should not exercise any rights relating to them. The Court of Appeal also criticised a a brazen irregularity, that the case being commercial case should have been tried in the Commercial Division of the High Court at Kuala Lumpur. The registration number, R3-25-3-1995, however was issued by the Appellate and Special Powers Division indicating that the applicants had filed their writ in that Division and not in the Commercial Division as should have been the case. The Court added, "The fact that the proceedings were filed in the wrong Division does not render the proceedings to be in any way invalid but may, coupled with other considerations in the present case, give the impression to right-thinking people that litigants can choose the judge before whom they wish to appear for their case to be adjudicated upon. This, we consider, may lead to very unhealthy negative thinking and since justice must not only be done but must also be seen to be done, it is incumbent on the trial Judge, upon perusal of the pleadings, to have taken the initiative of transferring the proceedings to the right Division so as to dispel any notion that he is partial to any party. This is yet another added reason that strengthened our conviction that it is right and proper that we exercise our inherent power to prevent an injustice being done by the issue of an interim injunction restraining the respondents from enjoying the fruits of the registration of the infamous shares into their names" These observations are made so that people will not say, "Something is rotten in the state of Denmark." Memorable words from the joint opinion of Dato Chan who sat with Datos Siti Norma Yaacon and K C Vohrah, judges who have since retired with unsullied reputations. Incredibly, the Federal Court expunged that part of the judgment that it found annoying and told off the court of appeal. It was the chief justice Mr Eusoff Chin, the same Eusof Chin who sat in the Boonsom case, who did the "expunging," something unheard of. The third case is the case of Mr Zainur Zakaria. He was charged with contempt for asking the court to prohibit the prosecuting lawyers in one of the Anwar Ibrahim cases from prosecuting on the ground that they had fabricated evidence against Anwar. |
| This
application was was most certainly not a contempt of
court, which is
defined as any act done or writing published,calculated to
bring a
court or a judge of the court into contempt or to lower his authority.
The lawyer was refused time to prepare his defence and call witnesses
and was speedily sent to jail, even bail pending an appeal was denied.
The rogue behaviour of the judge fed the
popular perception that the judge was hell bent on
punishing Mr
Zainur Zakaria for
defending Anwar Ibrahim, once the political darling of the prime
minister but now a spurned pariah. The maxim that
justice must not only be done but
must manifestly be seen to be done.clearly had no relevance in this
sort of court.
Then there is the silly case of Mr Tommy Thomas which again exposes the oppressive conduct of some judges during this slide into shame. Mr Thomas, a defendant in a case, had agreed to a statement read out in court that a settlement had been reached. Mr Thomas later issued a claim that the deal had been done by the insurers despite his objections. Incredibly, he was charged with contempt. Despite an apology, he was sentenced to six months imprisonment Dato N H Chan's book has recorded some judicial scandals. These landmarks of abuse marked the period after the battering of justice in 1988 with the Tun Salleh Abbas "trial" and the subsequent nose dive to a bullying abjectness choreographed by some judges anxious to be storm troopers of the new era. The Anwar Ibrahim trials were accompanied by a series of attacks by a judge against Mr. Anwar's defense lawyers which so alarmed the Lawyers Committee for Human Rights that they issued a condemnatory statement. Not to be forgotten is the barefaced moving of a judge from the Appellate and Special Powers Division of the court to the Criminal Division, and the removal of Mr Justice K C Vohrah, the Criminal Division's senior judge, to the Appellate and Special Powers Division. Lawyers understandably suspected this was because Mr Justice K C Vohrah was seen to be too proud a man to bow to the wishes of powerful politicians, however high. It was particularly during the Anwar Ibrahim trials that we witnessed how low the nose dive had taken our courts; it is easy to understand the anger that emerges from the pages of this book. . During the course of the second trial, Mr. Karpal Singh, one of the defence team, referred in open court to a medical report which showed that the levels of arsenic in Mr. Anwar's body were alarmingly high and that he was losing weight and hair. He asked for an inquiry to be held. Even though both the trial judge and the Attorney General expressed their concern about the report and agreed that there should be an investigation, Mr. Karpal Singh was charged with sedition for having said that: "it could well be that someone out there wants to get rid of him..... even to the extent of murder...I suspect people in high places are responsible for this situation." It was only a month later that the Attorney General decided to prosecute Mr. Karpal Singh for sedition. The Lawyers Committee for Human Rights noted that "this is the first case anywhere in the world in which a lawyer has been accused of sedition for words spoken in the defence of his client. We believe that such a prosecution strikes at the heart not only of the immunities of lawyers in respect of the conduct of their professional duties but even more importantly at the right of an individual to fair trial. Our concern is so great that we have taken the unusual course of publishing an opinion setting out our views.." |
| Another
victim of the sedition laws is Mr Lim Guan Eng, of the Democratic
Action Party, convicted on charges
under the Sedition and Printing Presses and Publications Acts. He had
questioned, in a speech and in a pamphlet, the justice of detaining for
three years a 15-year-old victim of
statutory rape while allowing her rapists, including, allegedly, the
former chief minister of Malacca, to go free. The alleged
rape victim later retracted
her charges against the chief minister, stating that she was coerced
into fabricating them. The woman's grandmother, who had accompanied the
woman when she made the charges, questioned the woman's motives for
recanting and continued to assert that the man had been guilty of
statutory rape. Then there is the disgraceful case of Far Eastern Economic Review correspondent Mr Murray Hiebert who was convicted of contempt for writing an article, reporting a civil suit brought by the wife of a judge, Gopal Sri Ram, against the International School of Kuala Lumpur, the judge's wife claiming that the school had discriminated unlawfully against her son by dropping him from a school debating team after charges that the son had acted improperly. Mr Hiebert's article noted, among other things, the unusual speed with which the courts had disposed of the case. The Court of Appeal agreed that the writer had "scandalized the court." The case, the first in which a journalist has been sentenced to jail for contempt in the ordinary course of his duties only confirmed that there is no freedom of the press in this country and caused considerable doubt of judicial impartiality. Dato N H Chan was not a party to any of the scandals I have mentioned. He was an honest judge. He displayed this quality when the judges called for the removal of shorthand machines from the court rooms. The machines had been brought in by that great Lord President Tun Azmi in an endeavour to speed up cases by doing away with the snail paced note taking by judges. The judges did not like this innovation one bit, that is, those who were in the habit of leaving out large chunks of evidence they did not like, or altering bits here and there on a rethink. The main argument of the opposition was that the short hand writers were just not good enough; Tun Azmi gave in but left it to those judges who liked the machines to retain them. That Mr Justice N H Chan was one of the few who retained their shorthand writers and continued to supply lawyers with pristine notes. NH Chan was a good judge, quick on the uptake, sure of his law, always courteous and humble enough to admit, as he does at page 42, that he was wrong to threaten contempt when the Ipoh Municipal chief in 1980 criticised a decision of his. He was humble enough to step down when counsel in an appeal against sentence told him that the request was made because he had a reputation for hard sentences. He was one of those who adorned the bench. The author has put on record some of the bad cases which shocked lawyers and laymen alike. He has done a public service.# Lim Kean Chye Book Reviewed: Judging the Judges by N H Chan DPCM Alpha Sigma 2007 |
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| _____________________ The Penang File Issue 54 |