Rosli Dahlan wins Appeal against NST and MACC

September 17, 2014

Rosli Dahlan wins Appeal against NST and MACC

By Din Merican

rosli-dahlan2Unknown to many, this morning, the Court of Appeal presided by JCAs Clinton Albert, Hameed Sultan and Nalini Pathmanaban today heard NST’s appeal vs the High Court Judgment of Judge Siti Khadijah Badjenid which held NST and MACC liable for defamation vs Lawyer Rosli Dahlan and ordered NST and MACC to pay RM150, 000.00 each to Rosli (total RM300,000.00). The counsel for NST was Harjinder Kaur and counsel for Rosli was Chetan Jethwani and Parvinder Kaur.

The High Court had found that The NST and MACC had authored and published false news about Rosli by reporting that he was investigated and charged for hiding the assets of Dato Ramli Yusuff which they had dubbed as the RM27million Cop story.

Previously, Utusan Malaysia and The Star newspapers had published public apologies and paid damages to Rosli for publishing similar false stories.. Yet, The NST refused to apologise to Rosli. The NST’s misconduct was further aggravated by the fact that the NST’s reporter, V Anbalaga, had claimed that he had obtained the information from the MACC who wanted the news to be leaked, whereas during the trial the MACC denied leaking any information. Judge Khadijah had found that the MACC had breached s.21(4) of the ACA Act by leaking confidential investigation information.

What was comical about the whole thing was that the MACC even republished the NST article on its website and later claimed that the MACC Publication Unit did not know about the case but just adopted the false NST story. During the trial witnesses for NST and MACC blamed each other just to avoid liability. That is how these liars behaved when they are caught lying!

During the hearing this morning, the Court of Appeal Judges asked why the MACC did not appeal if they did not do any wrong to Rosli and if the story that was published on the MACC website was true. They also questioned NST’s lack of remorse by appealing when MACC did not appeal.

Judge Hamid Sultan asked why the NST started and popularised the RM27milion story when the charge against Rosli and Dato Ramli did not mention any amount at all. Judge Hamid Sultan also said there was no basis for stating that amount or that story which was false and indicated malice on the part of the NST- “News cannot add on untrue stories,embellished it to be a fairy tale. Only real news enjoy any privilege.”

Judge Linton Albert said- “The Sting of the Defamation is that you stated he hid RM27milion or that he was charged for RM27milion when that was totally untrue!” When Court resumed at 12.50pm, the Chairman of the Panel dismissed NST appeal and ordered NST to pay cost of RM20,000.00 to Rosli Dahlan.

Do Justice by Prosecution and not Persecution

September 12, 2014

Gani PatailThe current Attorney-General should heed the advice of Tan Sri Abu Talib who was the Public Prosecutor and Legal Adviser to the Malaysian Government (1980-1993). Article 145 of the Malaysian Constitution was designed to ensure that the Attorney General can carry out his duties without interference from external parties. He has been given complete discretion  and like any judge, he  cannot be removed except by impeachment.

Because of this, he has awesome responsibility to ensure justice is done, and done without favour to sectarian interests. That security of tenure does not allow him to do as he pleases. Therefore, the A-G must diligently examine and weigh all the evidence before him as his decision to prosecute affects an accused’s reputation, dignity and honour.

Why put someone through an emotional due process grinding mill without ensuring that the case for the prosecution is rock solid! Respect the Rule of Law and do Justice so that we Malaysians do not have to live under a climate of fear and be subjected to selective and arbitrary prosecution . –Din Merican


Rosli-DahlanA Reader of this blog asked me this question: Can the A-G, Tan Sri Gani Patail, be sued? Absolutely yes! Not only that, the A-G can be removed from his post by impeachment. Lawyer Rosli Dahlan has done it and succeeded against the Malaysian Anti-Corruption Commission (MACC), headed by Tan Sri Abu Kassim, which had to pay him RM150,000. He then sued the A-G for abuse of process,  public misfeasance and malicious prosecution.

The A-G’s trusted friend Lawyer Tan Sri Cecil Abraham (of the PI Bala fame) tried to block it by applying to strike out Rosli’s suit. Judicial Commissioner Vazeer Alam Mydin Meera slammed the A-G. Is that why this Judicial  Commissioner is not confirmed as a Judge?

So, Rosli Dahlan has shown the way and now all those charged by this despicable A-G Gani Patail should sue him based on what former A-G Abu Talib says: “To charge a person is a very serious matter as it affects the accused’s credibility, standing and dignity”.–Din Merican

AG not above the Law



September 12, 2014

Advice from Former Attorney-General: Do Justice by prosecution and not persecution

by V. Anbalagan, Assistant News Director, The Malaysian Insider

“There are doubtless those who would wish to lock up all those who suspected of terrorist and other serious offences and, in the time-honored phrase, throw away the key. But a suspect is by definition a person whom no offence has been proved. Suspicions, even if reasonably entertained, may prove to be misplaced, as a series of tragic miscarriages of justice has demonstrated. Police officers and security (and public) officials can be wrong. It is a gross injustice to deprive of his liberty for significant periods a person who has committed no crime and does not intend to do so. No civilized country should willingly tolerate such injustices.” ― Tom Bingham, The Rule of Law

The barrage of sedition charges against opposition lawmakers and others is seen as “persecution” and not prosecution, says Tan Sri Abu Talib Othman, who took a swipe at the Attorney-General for reviewing the cases after charges were framed.

Abu TalibProsecute, Not Persecute, says Abu Talib

Talib, a former A-G, said it was unusual for Tan Sri Abdul Gani Patail, who is also public prosecutor, to first frame charges and later, decide to review them.”You must do justice by prosecution and not persecution,” Talib told The Malaysian Insider in a special interview in Kuala Lumpur yesterday.

Talib, who was A-G between 1980 and 1993, was commenting on Gani’s statement on Tuesday that his office was reviewing cases against Universiti Malaya law lecturer Associate Professor Dr Azmi Sharom and several others who are facing charges under the Sedition Act 1948.

Gani had said this was a normal practice for the prosecution and his chambers would carry out its duties responsibly with fairness, accuracy and transparency and without influence by any party.But Talib begged to differ.

“To charge a person is a very serious matter at it affects the accused’s credibility, standing and dignity,” he said. It will put the accused in an emotional turmoil. Even, if the prosecution withdraws the charge later, the damage is done.”

The former A-G said during his tenure, he only consented to charges being framed if there was “90% evidence to secure conviction”.He said charges were also framed base on applicable law, fairness and public interest consideration without influence by a third party.

He said Gani’s statement that the chambers would review the charges only gave the impression the decision to charge the accused was made without careful and serious consideration of all the available facts.

“Is he (Gani) admitting that he was not fair and transparent when the accused were first charged, and that is why he is reviewing the cases now? Maybe he should clarify.” Talib said it was not the duty of the prosecution to seek conviction but ensure justice for the accused and victim.

Azmi Sharom 3In Azmi’s case, he said, the lecturer was only commenting on the law or explaining the law.”Unfortunately, the term seditious tendency is wide enough. This is where the A-G should have used his wisdom in his decision to frame charges,” he said, adding that during his time there were only one or two sedition cases for prosecution.

Talib, who declined to name names, said there were personalities who made far more serious racial and religious seditious remarks, but were not charged.”He is not required to explain but ideally it will be good to enhance the confidence in the administration of justice and his office,” Talib said, referring to Gani.

On Wednesday, the Malaysian Bar called on Gani to withdraw the sedition charge against Azmi, opposition leaders and activists.Its president, Christopher Leong, said Gani had at the opening of the Legal Year 2013 stated that “every man must present his views without penalty and there must be a spirit of tolerance in the entire population.”

The Bar will hold an extraordinary general meeting on September 19 to debate resolutions on the Sedition Act 1948. Undergraduates from public universities nationwide had also joined a hartal (protest) organised by UM students in a show of solidarity with Azmi.

On September 2, Azmi was charged with sedition based on statements in an article entitled “Take Perak crisis route for speedy end to Selangor impasse, Pakatan told”, which was published in a news portal on August 14.

Sabah politician David Orok was prosecuted under the same law on September 3 for allegedly insulting Haris IbrahimIslam and Prophet Muhammad in Facebook two months ago. Since early this month, a number of opposition politicians – Padang Serai MP N. Surendran (PKR), Shah Alam MP and PAS central committee member Khalid Samad, and Seri Delima assemblyman R.S.N. Rayer (DAP) – have all been charged with sedition. Seputeh MP Teresa Kok (DAP), Batu MP Tian Chua (PKR) and activist Haris Ibrahim (right) are also facing trial for sedition.

Those found guilty, could face a fine of up to RM5,000 or a maximum jail term of three years, or both.However, elected representatives risk losing their public office if the court imposes a fine of RM2,000 or more, or at least a year’s jail term

Restoring Faith in the Judiciary’s integrity

September 10, 2014

Restoring Faith in the Judiciary’s integrity

by Koon Yew Yin
Despite being let down by our judiciary in the past, the latest verdict on the Teoh Beng Hock case shows us our judiciary is still just.

beng-hockWill Justice be finally done?

Malaysia’s Judiciary has taken a severe beating in the last few years in regard to its perceived lack of fairness and lack of adherence to justice. Notorious cases such as those involving Lina Joy, Anwar Ibrahim and Nizar vs Zambry among others have raised doubts as to whether our judges – especially in cases with politically sensitive outcomes – are able to arrive at fair and just decisions.

Gani PatailPublic concern that our courts – including at the highest level – may in fact be filled with partisan, unfair or even corrupt judges, has been rising non-stop since the Mahathir period. This includes the present batch of ridiculous sedition cases which have made the Attorney-General’s Chambers  (pic The A-G) a laughing stock among knowledgeable legal circles all over the world. It has also led many to conclude that the Malaysian Judiciary is under tremendous political pressure when arriving at their judgements.

Why are there incompetent judges?

The highly respected former Court of Appeal judge N H Chan (right) when commenting on the number ofNH-Chan-Recent incompetent judges in Malaysia concluded that there was something very wrong with our system of appointing judges.

Many people from the legal fraternity tend to agree with him. There was a time when judges were appointed from the cream of the legal profession and the law departments in our universities produced graduates who knew their law in-depth.

With the decline in educational standards especially after the implementation of the New Economic Policy, it became inevitable that the standard of law graduates in the country – and with it, also the standard of judges recruited to administer justice – would also fall.

VK LIngamApart from the decline in educational standards, the factor of politically biased appointments has played a role. The Lingam (pic left) case and the shocking disclosures arising from the Royal Commission of Inquiry in particular showed clearly that the appointment of judges in the country has been tainted; and that there was evidence of ethical and criminal misconduct by lawyer Lingam, various judges, politicians and businessmen on the matter of judicial appointments.

Despite this finding, the Attorney-General chose not to put Lingam in the dock. This was not because no law had been broken but because of the fear that the skeletons that would emerge from the closet would bring down the government.

We are still living with the legacy of a compromised Judiciary and the dark shadows cast by prominent members of the judiciary who are more interested in the pursuit of power and self interest rather than with the pursuit of justice.

Importance of the Teoh Beng Hock case

However, every now and then, a verdict comes from out of the blue which shows that there are also good and honourable judges in the system who are not interested in the pursuit of power and self interest and who are willing to stand firm in the administration of impartial and principled justice. The most recent example arrived in the form of the Teoh Beng Hock case, a landmark case, which has riveted the nation for over five years now.Members of the public who were expecting this case to go unpunished by our judiciary were pleasantly surprised to see this was not to be.

Abu KassimAs a result of the latest Court of Appeal verdict, we see on social media praises heaped on the three appeal court judges – Ariff Yusuf, Mah Weng Kwai and Hamid Sutan for striking down the earlier open verdict and refusing to set aside the coroner’s open verdict in the inquest of Teoh Beng Hock.

In their unanimous decision, the panel of judges held that Teoh’s death was caused by multiple injuries from a fall from the 14th floor of Plaza Masalam as a result of, or which was accelerated by an unlawful act or acts of persons unknown, inclusive of the Malaysian Anti-Corruption Commission (MACC) officers who were involved in his arrest and investigation.

Police must start investigations

Teoh’s sister, Lee Lan has since lodged a report at the Shah Alam Police Headquarters to speed up police investigations. The Police must remember that several MACC officers caused the death of Teoh and the culprits must be caught and punished adequately.

Whatever happens next, it is important that we should not lose faith in the integrity of our Judiciary which forms the first line of defence in the protection of our constitutional rights.It is not only judges who must exercise vigilance so that their independence is not compromised by political, legislative and other pressures, it is all Malaysians who must stand firm so that there is no political or executive interference with the judicial process.

JAWI Vs Rosli Dahlan: When you can’t win, take disciplinary action

September 7, 2014

Tokyo, Japan

JAWI vs Rosli Dahlan: When you can’t win, take disciplinary action

by Ida

The Federal Territory Islamic Affairs Department (JAWI) has filed a disciplinary complaint against Syarie lawyer Rosli Dahlan for allegedly interfering in its prosecution of Muslim intellectual and author Kassim Ahmad, a move he claims is meant to “intimidate” him.

rosli-dahlan2Rosli Dahlan

JAWI, which is charging Kassim for insulting Islam, recently complained to the Federal Territory Syarie Lawyer Committee (JPSWP) over Rosli’s conduct in defending his client.

In the July 8 complaint letter sighted by Malay Mail Online, JAWI accused Rosli of breaching 10 rules in the Arahan Amalan No 4 Tahun 2002 (Practice Directions No 4 of 2002), titled Ethics of Shariah Lawyers. These include the rule against delaying court proceedings and the directions to respect the court, act fairly and respectfully when defending his client as well as declining instructions from the client if his professional conduct may be called into question.

But a perceived conflict has arisen as the complaint against Rosli was lodged by JAWI’s Chief Syarie Prosecutor — who is also a member of the JPSWP that is tasked with probing and hearing all disciplinary complaints against lawyers practising in the federal territories’ Shariah courts.

Known for taking on controversial cases involving JAWI in the Shariah court, Rosli could be barred from representing clients such as Kassim if the complaint results in his suspension or deregistration as a Syarie lawyer.

Citing a June 13 letter that Rosli had penned to the Prime Minister, Kedah Mentri Besar and Islamic Affairs Minister while acting for Kassim, JAWI alleged that Rosli “tried to use certain quarters to disturb this department’s prosecution in the proceedings of his client’s case”.JAWI also complained that Rosli had allegedly “influenced, pressured and seemingly threatened” to ensure his demands were fulfilled.

The committee then gave Rosli two weeks from its August 14 letter to issue a “show cause notice” to explain why disciplinary action should not be taken against him.

The JPSWP maintains the list of Syarie lawyers allowed to practice in the federal territories, while the list of possible disciplinary actions it can take on a Syarie lawyer include a reprimand, suspension or deregistration.

The Malay Mail Online understands that the committee’s members include the Chief Syarie Prosecutor, the Syarie chief judge, the Registrar, the Attorney-General or his representative, and two appointed members — Muslim Lawyers’ Association president Datuk Zainul Rijal Abu Bakar and the Federal Territory Islamic Religious Council (MAIWP)’s legal adviser.

When contacted last week, an officer with the committee confirmed that it does not have a separate disciplinary body like the Bar Council — which maintains the roll of registered lawyers that practice in the civil courts in Peninsular Malaysia.

The officer, who declined to be named as he was not authorised to speak, said the committee was aware of the potential “conflict” of interests as the Chief Syarie Prosecutor is both the complainant and also the prosecutor of Rosli’s client, Kassim.

“Later when we receive the reply from Rosli Dahlan, we will hold a meeting, the committee will decide whether the KPS (Chief Syarie Prosecutor) cannot be involved in the hearing,” the officer said, saying that there could be other solutions available.

But the officer clarified that Rosli’s case was still in the preliminary stages and the committee has yet to meet on his case.

In Rosli’s reply to the committee last Wednesday, he said he has never been cited for disciplinary or ethical violations since he started practising in 1988 as a lawyer in both the civil and Shariah courts. Highlighting the fact that JAWI’s Chief Syarie Prosecutor is his opponent in two cases — Kassim Ahmad’s and that of Borders Malaysia — Rosli said the move to file the complaint was inappropriate and amounted to an attempt to subdue him.

“The actions of the Chief Syarie Prosecutor can be considered as an effort to scare and intimidate an advocate and solicitor who is carrying out his duty to defend the client based on the without fear or favour principle,” he wrote in the letter, which was sighted by Malay Mail Online.

Besides defending Kassim Ahmad in the Shariah court, Rosli also represents the 81-year-old author in the civil court in the judicial review of JAWI’s actions in abruptly hauling him up from his Kedah home to Kuala Lumpur, besides briefly detaining him overnight before charging him in the Putrajaya Shariah court the next day.

NIK RAINA INTERVIEWIn a third high-profile case, Rosli acts for Borders bookstore manager Nik Raina Nik Abdul Aziz (left) — whom JAWI had previously arrested and charged in the Shariah court with allegedly selling and distributing a book that is contrary to Islamic laws.

In a series of correspondence with the committee, Rosli has asked for an extension of time to reply to the complaint, saying that he was unable to determine the nature of his alleged violations as the Practice Directions were not gazetted or provided to him. Rosli has since asked the committee to provide him with a copy of the actual Practice Directions cited against him.

The Persecution of Kassim Ahmad: A-G Gani Patail loses again

July 24, 2014

The Persecution of Kassim Ahmad: A-G Gani Patail loses again

by Din Merican

In the past two weeks, the mainstream media have been screaming the news that Kassim Ahmad had lost in his attempt to get leave to sue the Minister of Religious Affairs, the Syariah Chief Prosecutor and the Jabatan Agama Islam Wilayah Persekutuan (JAWI). It is as if they were gleeful that Kassim Ahmad had initially lost in the High Court and then failed to get a stay in the Court of Appeal.

The Malay media, especially Utusan Malaysia, portrayed that Kassim Ahmad will finally meet his doom in the Syariah Court for “menghina Islam”. That immediately made the already controversial Kassim Ahmad Islam’s Public Enemy No.1 in Malaysia.

But what stunned me most was that the Malay Muslim public was even quicker to label the counsel whoRosli Dahlan acted for Kassim Ahmad as also “bersubahat” or an accomplice to an enemy of Islam. Thus it was that my young friend Lawyer Rosli Dahlan who acts for Kassim Ahmad ended up being painted negatively as if he too was an enemy of Islam. I know Rosli to be a deeply religious person, and that such remarks would hurt him.

What most people do not realize is that Rosli is the 1st batch of the law graduates of the International Islamic University (IIU). I know Rosli is proud of his alma mater and fiercely loyal to the concept of justice taught by his mentor, the late Professor Tan Sri Ahmad Ibrahim.

I know that because on the occasions that I get to speak to him about civil rights including when we had lunch with the former US Ambassador John R Mallot, Rosli was passionate about the Rule of Law and justice and insisted that these two concepts are not just Islamic concepts but are the demands of the Syariah. John and I found that very refreshing that a UIA graduate is not insisting on the importance of implementing Hudud but was more concerned about the justice that an Islamic system would bring.

That gave me an insight as to why Rosli would defend Kassim Ahmad and persevered even as he faced initial failures when the High Court rejected his bid to seek Judicial Review against the Minister Agama, the Chief Prosecutor and JAWI. But today is a different story.

Today, most alternative media reported that Rosli succeeded in persuading the Court of Appeal that Kassim Ahmad should be given leave to challenge Minister Agama, the Chief Prosecutor and JAWI. Today, the Court of Appeal unanimously directed the High Court to hear the judicial review application filed by scholar -researcher and public intellectual Kassim Ahmad.

Today, Rosli perseverance in fighting for Kassim’s case paid off. Today, Rosli won against the A-G in Kassim Ahmad’s case (Malaysiakini’s report below).

But, one of the reporters also whispered something to me that many people may have forgotten. This is the end of Ramadan. In 2007, at this time of Ramadan, Rosli was brutalized by the MACC and that started his on-going battles since then with the AG and others whom he called the “rogues in government”.

What the reporter whispered to me was that after Judge Vazeer Alam ruled that the AG is not immuned from legal action brought by Rosli, A-G Gani Patail has been avoiding going to trial. And yesterday, A-G Gani Patail succeeded in getting a Stay Order so that Rosli’s case against A-G Gani Patail and 11 others will not see the light of to trial. READ :

I was sad for Rosli, here he is successfully fighting Kassim Ahmad’s case, but , unknown to many he suffers another personal tragedy when his own case against AG Gani Patail cannot go on. But I know Rosli, he will not yield. He will not surrender. He will persevere. He is a fighter and I know he will fight to the end until he thinks justice has been served!


Malaysiakini article on Kassim Ahmad’s Judicial Review bid

High Court must hear scholar’s review bid

by Hafiz (07-24-14)

The Court of Appeal in a unanimously decision today ordered the High Court inKualaLumpur to hear the judicial review application filed by scholar Kassim Ahmad.In ruling that the civil court has jurisdiction to hear matters pertaining to questionable actions by Islamic religious authorities, the appellate court ordered the case to be remitted to the High Court to hear its merits.kassim-ahmadJustice Balia Yusof Wahi, who led the three-member panel, did not make an order as to costs. Sitting with him were Justice Mohtaruddin Baki and Justice Rohana Yusof.

Justice Balia said the court was satisfied that Kassim had passed the low threshold in establishing a prima facie case for the judicial review to be heard.He said the application related to the defendant (the religious authorities), being a public body, for initiating proceeding against Kassim, after he was charged under the Syariah Criminal Offences (FT) Act.

Appellant should not be shut off from remedy’

“The High Court judge concurred (in her judgment) that the issue is not confined solely to jurisdiction. The appellant is challenging the enforcement and administration of a public body. On this, the appellant should not be totally shut off from his remedy for judicial review and from ventilating the challenges,” the Judge said.The court, Justice Balia said, is also guided by the 1988 Supreme Court decision in the case of Mamat Daud, that an offence against an Islamic precept can be challenged by way of judicial review. “We therefore allow the appeal and order is granted for leave (permission) to hear the merits. We set aside High Court order (that it does not have jurisdiction),” he ruled.

Kassim, was represented by Rosli Dahlan , Bahari Yeow and Ahmad Khubayb, while senior Federal counsel Nor Hisham Ismail appeared for the Attorney-General’s Chambers.  Rosli also applied to the appellate court for a stay of Syariah High Court proceedings against Kassim, but this was objected to by Nor Hisham.

Following this, Justice Balia said he would order that an early date be fixed by the High Court. High Court judge Justice Zaleha Yusof on July 14 rejected Kassim’s application for a judicial review, following a preliminary objection by the Attorney-General’s Chambers that the court has no jurisdiction to hear the matter.

Kassim, 81, named Minister in the Prime Minister’s Department Jamil Khir Baharom, the Chief Syariah Prosecutor of the Federal Territories Islamic Affairs Department (JAWI)  and the Malaysian government as respondents when he filed the judicial review application last month.

He complained that JAWI acted overzealously in breaking down the door of his house in Kulim, Kedah, to arrest him and take him to Kuala Lumpur in March this year.

JAWI has not authority in Kedah’

The octogenarian complained that JAWI had no authority to make the arrest as it  should be confined to the Federal Territory and the fatwa against his book was only applicable there and not in Kedah.

Kassim was charged in the Syariah High Court in Putrajaya on March 27 for with deriding Islam, under Section 7(b) of the Syariah Offences (Federal Territories) Enactment 1997, in his talk at the Yayasan Kepimpinan Perdana seminar, which was organised by former Prime Minister Tun Dr Mahathir Mohamad in Putrajaya in February.

The scholar is charged with stating that people appear to idolise Prophet Muhammad and that the aurat of a woman does not include her hair. He is also charged under Section 9 of the same enactment with violating the instructions of the religious authorities in delivering those views and for citing two books he authored, which have been banned by the Federal Territories Islamic authorities.

On May 6, the authorities levelled another charge against Kassim, but the charge was not read out in court when recording his plea.

In his judicial review application, Kassim is seeking several declarations: to quash the actions taken by JAWI, which includes the issue of the warrant of arrest against him; to set aside the charges he faces; to compel JAWI to give him the relevant documents pertaining to the charge; and to stop the authorities from prosecuting him.

He also sought a declaration that JAWI’s action was contrary to the Federal Constitution and a declaration that the Federal Territory fatwa is only applicable to those who live there and not in Kedah.

An Eminent former Judge and Chief Justice cannot tell the truth

July 8, 2014

A Tragedy when even an Eminent former Judge and Chief Justice cannot tell the truth

I was afraid I would become a ‘traitor’ to the Malays and Islam,” Former Chief Justice Tun Abdul Hamid Mohamad said. He was not truthful; he was not offered a place in a unity council, says source –

CJ of Malaya Hamid