Sunday, November 2, 2014

Shafee own-goal the failure to observe principle creates an apprehension of bias

The Supreme Court has barred anyone from becoming a complainant, investigator and also the judge, all rolled into one. A nation that cannot uphold its law cannot preserve its order. the authority of state abandoned the responsibility of state. Excuses, evasions and lies have shifted over 26 years; this central truth has not.An elaborate programme , reward and punishment was put into place.
‘Why did Najib meet Saiful, a university dropout?’ Minister of Sports and Youth Khairy Jamaluddin, isn’t your boss PM Najib Razak ‘involved’ with the sodomy case when the complainant Mohd Saiful Bukhari Azlan went to the then DPM’s house to meet him?Saiful is obviously a willing ‘tool’. Why this important meeting was kept secret; only coming out with it in public when exposed? Why was the number one police chief, the inspector-general of police (IGP), also in contact with the university dropout?Why was Saiful, an ordinary person, so important to be given so much attention and resources against the opposition leader? Shafee should explain this to five judgesThe 1998 and 2008 sodomy charges against Anwar, the opposition leader, have given fodder to government critics to support this claim.

Anwar is current appealing his conviction on the second charge at the Federal Court.
Critics also accused the Malaysian judiciary of bias in the use of draconian laws, such as the Internal Security Act, against opposition politicians.
Even the judges themselves will admit that they totally have not a bit of confidence in the judiciary as they know what has been happening inside the judiciary system.The judiciary should take notice and heal themselves from the Umno cancer. If the same poll was conducted on the police, the civil service, ruling party politicians, academia and the royal institution, the results would be just as damning, if not worse 


Supreme Court, very seldom will the Court hear a matter for more than two sittings.
But the Malaysian Court is different, Unlike ours, which will only hear issues of law, the Malaysian Court heard arguments point by point on why the Court of Appeals erred in reversing the High Court.
[mob1900_sodomyII.jpg]
While DNA as a science is itself accepted, what made the use of DNA evidence dubious in Ibrahim’s case was the fact that while the DNA extracted from a towel, a comb and a tooth brush allegedly used by Ibrahim came from one and the same person, there was nonetheless no direct evidence that they were in fact the DNA of Ibrahim!
DNA as a science would itself confirm if DNA found from an object is from a particular person. But in the case of Ibrahim, the Appellate court overturned his conviction on the basis of mere circumstantial evidence that they could only have come form Ibrahim, despite the absence of scientific link to him.
"The offence is a serious and seizable offence? It is carnal intercourse outside the order of nature and there is no need for a warrant of arrest."
Justice Suriyadi points out that the warrant of arrest states a different numbered condominium unit address and Shafee admits it was an error.

What is important, says Shafee, is that the complainant (Mohd Saiful Bukhari Azlan) was named.Shafee argues it is not necessary for the grounds of arrest to remain the same, as it is up to the prosecutor. Shafee concludes there would have been no opportunity for fabrication of evidence.readmore.http://themalay-chronicle.blogspot.com/2014/01/shafee-are-you-your-own-most-favourite.html

This kind of a conclusion would not have been possible in the Philippine or any other jurisdiction with the semblance of an independent judiciary. The fact that the Malaysian Appellate Court convicted him under this dubious condition could only mean that it abdicated its independence and agreed to be a tool of the ruling party, UMNO, and Malaysian Prime Minister Najib Razak, in an effort to stymie Ibrahim and the rest of the country’s opposition into surrender.
But battle tested democrats don’t succumb to threats easily. By highlighting the obvious, Anwar has turned the table on the Malaysian Judiciary. No court in this planet could have convicted him on the basis of DNA evidence with no direct link to him. The questions now is whether the Malaysian Supreme Court will exhibit independence and acquit Ibrahim, or be swayed by the ruling party as did the Court of Appeals. In a way, what I observed was the Malaysian Courts on trial, and not just Anwar Ibrahim’s case.
All freedom loving people of the world eagerly await the outcome of this trial. For with it is also a verdict on the independence and integrity of the Malaysian Courts.

All five judges hearing Anwar Ibrahim's appeal to set aside his conviction and sentence for Sodomy II at the Federal Court the past week, had served in various capacities with the government before ascending to the apex court.
Unlike Anwar's lead counsel Gopal Sri Ram, or former Chief Justice Zaki Azmi, who were pulled from private practice before ascending to the Federal Court, the five served the government the whole time.
Sri Ram was appointed straight from the private sector where he had his own firm Sri Ram and Co before being appointed straight to the Court of Appeal and retiring as Federal Court judge in 2010.
Zaki, who was previously an Umno legal adviser, also ran his own firm before being appointed as Federal Court judge and retiring as the Chief Justice in 2011.
Chief Justice Arifin Zakaria, 64, who is leading the five-member bench is known for writing the unanimous judgment in the Perak constitutional crisis, better known as the Mohd Nizar Jamaluddin vs Zambry Abdul Kadir case, when he was the Chief Judge of Malaya.
Justice Arifin, who hails from Pasir Mas, Kelantan, also wrote the majority judgment in the recent Allah controversy case of the Archbishop of the Catholic Church vs the Home Minister.
A graduate in law from University of Sheffield, he pursued his Masters at University College, London, and called to the English Bar in 1980.
He served in various capacities as a magistrate, Sessions Court judge and High Court judge. Prior to that, he served as legal adviser to various ministries and the states of Malacca and Perak.
Court of Appeal president Justice Md Raus Sharif is the number two in the judiciary.
Best known for giving oral judgments immediately if he is leading the panel, either at the Federal Court or Court of Appeal, Justice Raus, 63, hails from Rembau, Negeri Sembilan.
He was also on the bench for the Perak constitutional crisis and the Allah cases at the Federal Court.
But in the High Court, he is best known for presiding in the S Shamala and Dr M Jeyaganesh case involving unilateral conversion and custody of children, after Jeyaganesh converted to Islam.
He also presided over the body-snatching case involving former Everest climber M Moorthy @ Mohammad Abdullah.
Justice Raus obtained his LLB from University Malaya and Masters at the London School of Economics and like Justice Arifin, he served as a magistrate, Sessions Court and High Court judge and as state legal adviser for Malacca and Kelantan.
He was also legal adviser to several ministries prior to his ascension to the apex court.
Federal Court judges
Justice Abdull Hamid Embong, is the senior-most Federal Court judge among the 11 other Federal Court judges at present.
The 65-year-old Justice Abdull Hamid is best known as the High Court judge who handled the high profile murder of Norita Samsuddin involving Shah Alam Municipal council engineer Hanif Basree Abdul Rahman.
Justice Abdull Hamid, who is from Kuala Terengganu, also chaired the three-member panel of the Board of Appeal of the Board of Engineers in de-registering the engineer who was involved in the development of the Highlands Towers project.
He was from the premier institution Malay College Kuala Kangsar and has likely attended the premier school at the same time as Anwar, who is two years older.
He read law at Lincoln's Inn and was appointed a Federal Court judge in 2009.
Justice Abdull Hamid was a magistrate, a public prosecutor and the state legal adviser for Pahang and Negeri Sembilan, and is still serving as vice-president of the Asean Law Association of Malaysia.
The fourth judge, Justice Suriyadi Halim Omar, is the second most senior judge at the Federal Court, and is from Seremban, Negeri Sembilan.
Justice Suriyadi, 63, was also one of the judges who ruled in favour of the majority judgment in the Allah case.
However, he is best known as the presiding High Court judge who found Malacca state executive councillor Sahar Arpan guilty of corruption during the 1990s.
He read law at the Warwick University and was inducted as Barrister-at-law at Lincoln's Inn, London.
Like the other judges, he has served as a magistrate, Sessions Court judge and deputy public prosecutor at various levels, including the Anti-Corruption Agency.
The fifth Federal Court judge on the bench, Justice Ramly Ali, is best known for being the judge who presided in the Court of Appeal when it granted a stay of the Kuala Lumpur High Court decision recognising Nizar Jamaluddin as the rightful menteri besar of Perak.
Justice Ramly, 61, hails from Duyong, Malacca. This Universiti Malaya graduate has served in various capacities in the Judicial and Legal Service as a magistrate, and was involved in the Task Force of the Securities Commission at the Ministry of Finance.
He was formerly with the Registrar of Companies and when appointed a High Court judge, he presided mostly on commercial cases.

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Lawyer Muhammad Shafee Abdullah (second left) arrives at the Federal Court in Putrajaya, outside Kuala Lumpur today. – The Malaysian Insider pic by Najjua Zulkefli, November 3, 2014.

After nearly 40,000 judgments since 1950, many of which run into hundreds of pages, Supreme Court judges have informally come together to accept a hitherto unadmitted yet serious problem — verbose verdicts often create confusion, both for law and litigants.

Most judges feel that adding pages to judgments — in cases where the law has already been laid down by the apex court — neither adds muscle to delineated legal points nor helps the litigant, who has waited for years only to grapple with a word-heavy decision.

"Lean, to-the-point judgments delivered in quick time" is the message that the judges are informally circulating among themselves every time they meet in groups and discuss ways to fine-tune it.

"The judges are serious about rendering speedy justice to litigants. In most cases, the law has already been succinctly laid down and does not require further arguments to delay a verdict. Those cases need to be decided fast with crisp judgments focusing only on facts in the backdrop of the already laid down law," sources in the Supreme Court told TOI.


The Supreme Court of India.

Another factor which the judges feel needs sensitive handling is how to curtail lengthy arguments by noted senior advocates even on small issues, which could be dealt expeditiously on basis of facts.

The judges appear to be veering to a common approach — without showing any disrespect to the knowledge and experience of senior advocates, a time limit could be fixed for arguments at the beginning of a complex issue and strictly adhered to.

All these measures have a solitary goal — to speed up the justice delivery system in higher courts where pendency is starting to pose grave problems.

Chief Justice of India HL Dattu.
If the average life span of cases in the SC is 3-4 years, it is around 5-6 years in high courts. With arrears in the SC and HCs slowly creeping to alarming levels, the need for urgent steps has become imperative, the judges feel.

The winds of change have caught up with the new CJI, Justice HL Dattu, who has set up two committees to tackle arrears in both — the SC and HCs. The committee for suggesting ways and means to tackle arrears in the SC comprises justices TS Thakur and RF Nariman.

The trickier task of finding a way to tackle the arrears in HCs, which are independent constitutional institutions not subordinate to the SC, has been entrusted to three future CJIs - Justices J S Khehar, Dipak Misra and Ranjan Gogoi.

The CJI has already written to the chief justices of all HCs seeking their views on tackling mounting arrears in their courts and has received responses. The committees will soon attempt to evolve mechanisms to deal with the huge pendency.

Since its inception, the Supreme Court has repeatedly ruled that "no one can be a judge in his own cause". This principle brings fairness to the justice delivery system and upholds equality of all before law. 

It also lays down a sound ground rule for adjudication, decision and punishment. It bars anyone from becoming a complainant, investigator and also the judge, all rolled into one. 

Against this backdrop, newspapers last week published an interesting news item. An MLA in Uttar Pradesh had barged into a school to slap a Class V student. The boy allegedly had a brawl with the MLA's son. Taking his son's complaint against his classmate, the father took it upon himself to punish the alleged aggressor. Since he was the local MLA, he thought he had the sanction to punish the alleged wrongdoer.

He executed the punishment without bothering to hear the classmate's version of the story.
A similar story got enacted in Delhi high court last month. A magazine published a report alleging that an HC judge's son had a stake in a hotel where the dance floor remained open much beyond the scheduled closure time. It also alleged that police turned a blind eye because the stakeholder was an HC judge's son.


The Supreme Court has barred anyone from becoming a complainant, investigator and also the judge, all rolled into one. 

The publication came to the judge's notice. He inquired from his son, who told him that he had no connection with the hotel. On completing the inquiry with his son, the judge came to the conclusion that the report was published to tarnish his image and also to bring disrepute to the judiciary. He also termed it an attempt to shake the public's confidence in judiciary, which would impede administration of justice. 

He took up the case for hearing and issued contempt of court notice to the magazine's entire editorial staff, from the editor in chief to the subeditor and photographer. Importantly, he also directed the Delhi Police commissioner to seize all copies of the magazine, which contained the 'baseless' story, from its offices across the country. 

These two incidents show that aberrations continue despite repeated pronouncements by the SC cautioning everyone, including judges of the higher judiciary, against donning the dangerous 'judge in his own cause' robe. 

In 2010, the apex court in Mohd Yunus Khan vs UP had referred to its own judgments in AU Kureshi vs High Court of Gujarat [2009 (11) SCC 84] and Ashok Kumar Yadav vs State of Haryana [1985 (4) SCC 417]. In both, the court had held that no person should adjudicate a dispute in which he or she has dealt with in any capacity.


The Supreme Court of India. 

"The failure to observe this principle creates an apprehension of bias on the part of the said person. Therefore, law requires that a person should not decide a case wherein he is interested. The question is not whether the person is actually biased but whether the circumstances are such as to create a reasonable apprehension in the minds of others that there is a likelihood of bias affecting the decision," it had said in the 2010 judgment. 

More than 60 years ago, the Supreme Court had laid down the parameters for contempt of court proceedings in Rizwan-ul-Hasan vs Uttar Pradesh [1953 SCR 581]. 

It had said, "The jurisdiction in contempt of court is not to be invoked unless there is real prejudice which can be regarded as a substantial interference with the due course of justice. The purport of this court's action is a practical purpose and the court will not exercise its jurisdiction upon a mere question of propriety." 

In 2007, the court in Rajesh Kumar Singh vs High Court of Madhya Pradesh had elaborated and expanded the contempt ground rule laid down in 1953.


Justice John Marshall of US supreme court had warned that the power of judiciary lies not in deciding cases, not in imposing of sentences, not in punishing for contempt, but in the trust, confidence and faith of the common man." 

It had said, "This court has repeatedly cautioned that the power to punish for contempt is not intended to be invoked or exercised routinely or mechanically, but with circumspection and restraint. Courts should not readily infer an intention to scandalize courts or lower the authority of court unless such intention is clearly established. Nor should they exercise power to punish for contempt where mere question of propriety is involved." 

Expressing anguish at the invocation of contempt jurisdiction by some judges at the drop of a hat, the court had said, "Of late, a perception that is slowly gaining ground among public is that sometimes, some judges are showing over-sensitiveness with a tendency to treat even technical violations or unintended acts as contempt. It is possible that it is done to uphold the majesty of courts, and to command respect." 

What it then said is worth its weight in gold. "Judges, like everyone else, will have to earn respect. They cannot demand respect by demonstration of power. Nearly two centuries ago, Justice John Marshall of US supreme court had warned that the power of judiciary lies not in deciding cases, not in imposing of sentences, not in punishing for contempt, but in the trust, confidence and faith of the common man."

Since its inception, the Supreme Court has repeatedly ruled that "no one can be a judge in his own cause". This principle brings fairness to the justice delivery system and upholds equality of all before law. 

It also lays down a sound ground rule for adjudication, decision and punishment. It bars anyone from becoming a complainant, investigator and also the judge, all rolled into one. 

Against this backdrop, newspapers last week published an interesting news item. An MLA in Uttar Pradesh had barged into a school to slap a Class V student. The boy allegedly had a brawl with the MLA's son. Taking his son's complaint against his classmate, the father took it upon himself to punish the alleged aggressor. Since he was the local MLA, he thought he had the sanction to punish the alleged wrongdoer.

He executed the punishment without bothering to hear the classmate's version of the story.
A similar story got enacted in Delhi high court last month. A magazine published a report alleging that an HC judge's son had a stake in a hotel where the dance floor remained open much beyond the scheduled closure time. It also alleged that police turned a blind eye because the stakeholder was an HC judge's son.


The Supreme Court has barred anyone from becoming a complainant, investigator and also the judge, all rolled into one. 

The publication came to the judge's notice. He inquired from his son, who told him that he had no connection with the hotel. On completing the inquiry with his son, the judge came to the conclusion that the report was published to tarnish his image and also to bring disrepute to the judiciary. He also termed it an attempt to shake the public's confidence in judiciary, which would impede administration of justice. 

He took up the case for hearing and issued contempt of court notice to the magazine's entire editorial staff, from the editor in chief to the subeditor and photographer. Importantly, he also directed the Delhi Police commissioner to seize all copies of the magazine, which contained the 'baseless' story, from its offices across the country. 

These two incidents show that aberrations continue despite repeated pronouncements by the SC cautioning everyone, including judges of the higher judiciary, against donning the dangerous 'judge in his own cause' robe. 

In 2010, the apex court in Mohd Yunus Khan vs UP had referred to its own judgments in AU Kureshi vs High Court of Gujarat [2009 (11) SCC 84] and Ashok Kumar Yadav vs State of Haryana [1985 (4) SCC 417]. In both, the court had held that no person should adjudicate a dispute in which he or she has dealt with in any capacity.


The Supreme Court of India. 

"The failure to observe this principle creates an apprehension of bias on the part of the said person. Therefore, law requires that a person should not decide a case wherein he is interested. The question is not whether the person is actually biased but whether the circumstances are such as to create a reasonable apprehension in the minds of others that there is a likelihood of bias affecting the decision," it had said in the 2010 judgment. 

More than 60 years ago, the Supreme Court had laid down the parameters for contempt of court proceedings in Rizwan-ul-Hasan vs Uttar Pradesh [1953 SCR 581]. 

It had said, "The jurisdiction in contempt of court is not to be invoked unless there is real prejudice which can be regarded as a substantial interference with the due course of justice. The purport of this court's action is a practical purpose and the court will not exercise its jurisdiction upon a mere question of propriety." 

In 2007, the court in Rajesh Kumar Singh vs High Court of Madhya Pradesh had elaborated and expanded the contempt ground rule laid down in 1953.


Justice John Marshall of US supreme court had warned that the power of judiciary lies not in deciding cases, not in imposing of sentences, not in punishing for contempt, but in the trust, confidence and faith of the common man." 

It had said, "This court has repeatedly cautioned that the power to punish for contempt is not intended to be invoked or exercised routinely or mechanically, but with circumspection and restraint. Courts should not readily infer an intention to scandalize courts or lower the authority of court unless such intention is clearly established. Nor should they exercise power to punish for contempt where mere question of propriety is involved." 

Expressing anguish at the invocation of contempt jurisdiction by some judges at the drop of a hat, the court had said, "Of late, a perception that is slowly gaining ground among public is that sometimes, some judges are showing over-sensitiveness with a tendency to treat even technical violations or unintended acts as contempt. It is possible that it is done to uphold the majesty of courts, and to command respect." 

What it then said is worth its weight in gold. "Judges, like everyone else, will have to earn respect. They cannot demand respect by demonstration of power. Nearly two centuries ago, Justice John Marshall of US supreme court had warned that the power of judiciary lies not in deciding cases, not in imposing of sentences, not in punishing for contempt, but in the trust, confidence and faith of the common man."

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