The Persecution of Public Intellectual Kassim Ahmad continues


January 21, 2016

The Persecution of Public Intellectual Kassim Ahmad continues

by V. Anbalagan, Assistant News Editor

KASSIM AHMAD_HIGH COURT_

Kedah’s well known Public Intellectual Dr Kassim Ahmad talks to the Press.– The Malaysian Insider/Najjua Zulkefli

Putrajaya has filed an appeal to overturn Court of Appeal ruling that declared the arrest and detention of activist Dr Kassim Ahmad by the Federal Territories Islamic Religious Department (JAWI)in 2013 were illegal.

The Attorney-General’s Chambers from the civil division this afternoon filed the leave application in the Federal Court registry. The Malaysian Insider understood that Putrajaya had framed two legal questions for the apex court to grant leave in order for the merit of the appeal to be heard.

Meanwhile, Kassim’s lawyer Rosli Dahlan confirmed a copy of the application had been faxed to his office. On December 21, a three-man bench led by Judge Vernon Ong Lam Kiat said Jawi had no jurisdiction over Kassim, a Kedah resident.

“We order that the arrest, detention and prosecution are null and void,” Ong said, allowing Kassim’s appeal against a High Court ruling.Soon after the verdict, the 83-year-old Kassim hoped that JAWI would drop charges against him.

On Monday, Putrajaya Shariah High Court said it would decide on February 22 whether Kassim should be freed of his charges of insulting Islam and disobeying religious authorities. Rosli submitted that his client should be freed or alternatively given a discharge not amounting to acquittal as there was no stay applied on the Court of Appeal ruling.

Kassim had challenged JAWI over his arrest in a state outside the authority’s jurisdiction, claiming that it had acted illegally, unconstitutionally and beyond its powers.

Besides JAWI, he also named Dat0′ Seri  Jamil Khir Baharom, the Minister in charge of Islamic affairs, and then-Federal Territory chief Shariah prosecutor, Ibrahim Deris and the Government.

As a speaker, he was said to have insulted Islam at a seminar that was officiated by former Prime Minister Tun Dr Mahathir Mohamad.Kassim has held critical views of some hadiths and also accused some ulama (religious scholars) in Malaysia of enforcing a “priesthood caste”.

Kassim was arrested on March 26, 2013 by JAWI enforcement officers who also searched his home in Kulim, Kedah.He was flown in an AirAsia commercial flight from Penang to Sepang, Selangor before charged in a lower Shariah Court in Putrajaya.

In filing a judicial review against JAWI, Dr. Kassim sought an order to strike out the chief prosecutor’s decision on March 27, 2013 to prosecute him for allegedly insulting Islam and going against religious authorities.

Ridiculously Resilient High Corruption Score: Is Malaysian Judiciary a Major Cause?


UPDATE: (January 21, 2016)

January 19, 2016

Ridiculously Resilient High Corruption Score: Is Malaysian Judiciary a Major Cause?

by Lim Teck Ghee

The recently released annual Corruption Perceptions Index (CPI) table for 2014 has seen us climbing three places from the previous year. While some see this as evidence of improvement, it really is nothing to shout about. Malaysia is still ranked 50th out of 175 countries compared with 2013 when we were ranked 53rd out of 177 countries.

No doubt there will be some doubters and disbelievers who will ignore this important barometer which measures the level of corruption in the public service. Hard core “nationalist” supporters of the Government, for example, will argue that the index is another example of Western or Jewish-influenced organizations trying to discredit or defame the country.

Lim_Teck_Ghee_mugshot

However, it is difficult to fault the organizations involved in the formulation of the CPI and the methodology used to compute the index which basically is a composite figure based on surveys done by business people from around the world, including experts and analysts working in the countries evaluated.

In fact, most Malaysians will be wondering as to why we are not ranked worse. This is especially so given the importance attached by the index to the extent public officeholders are prevented from abusing their position for private interests and if the government successfully prosecutes, penalises and prevents corruption.

For instance, they ask:-

  • Are there any clear procedures and accountability governing the allocation and use of public funds?
  • Are public funds misappropriated by ministers/public officials for private or political party use?
  • Are there special funds for which there is no accountability?
  • Are there general abuses of public resources?

All these questions are pertinent in the scandals involving 1MBD and personal “donation” into the Prime Minister’s account which have transfixed us during the last year. One wonders what the Auditor-General is doing with regard to governance, apart from earning his fat salary and related perks and the prospect of becoming a chairperson in some important GLC.

Paramount Importance of Independence of Judiciary

Of equal, if not greater, importance is the emphasis attached to an independent judiciary by the diverse organizations involved in formulating the CPI.

In view of the fundamental correlation between the level of corruption and the level of integrity and independence of the judicial system. contributors to the CPI such as the Bertelsmann Foundation Transformation Index, World Justice Project Rule of Law Index, Economist Intelligence Unit Country Risk Rating and World Executive Forum Economic Survey are asking hard questions like:

  • Is there an independent judiciary with the power to try ministers and public officials for abuses?
  • Are Government officials in the judicial branch misusing public office for private gain.

These are questions which newcomers to the Malaysian judicial and political arena are likely to answer favourably if they go by what they read in the official media. But if we look at informed public opinion in response to judgments in the growing number of politically and religiously skewed cases that have appeared before the Judiciary during the past two decades, there will be a different response to the question as to whether we have a truly independent judiciary.

Why is it the common perception that the Attorney General, judges, magistrates and other court officials are subject to improper influence from the Government and from private or partisan interests?

In a recent keynote address to the Judicial Service Association of Sri Lanka, Justice C.V. Wigneswaran provided an answer by pointedly emphasizing the common contributory causes which lead to judicial bias. These are:

  • Political pressures brought about directly or indirectly.

  • Desire on the part of a Judge to curry favour for his or her future prospect.

  • Pecuniary interest of the Judge in the subject matter of the case before him or her.

  • A desire to patronize any former colleague at the Bar or elsewhere.

  • Inherent tendency in a Judge to show favour to certain classes of cases.

  • Interest of the Judge in one or the other litigating parties for any reason whatsoever.

Source: https://dinmerican.wordpress.com/2012/12/30/independence-of-the-judiciary/

There are very few, if any Malaysian judicial officials, willing to be as forthright as Justice C.V. Wigneswaran. One important exemption has been Justice Dato’ Mohd Hishamudin Yunus.

On his retirement, in response to the question, “what is the most important foundation stone for a judiciary to mete justice in a democracy?” he provided the following answer: A truly independent Judiciary.

In 1988, then Lord President Tun Salleh Abas, who was brought before a tribunal for misconduct, and the five Supreme Court judges that granted him an interim order against the tribunal, were either sacked or suspended. Today, in cases where the Government is a defendant, respondent or claimant, can judges still decide on the law alone or do you think some might find themselves thinking “I think this is what the Government wants me to do”?

The 1988 assault on our Judiciary was a judicial nightmare, a national tragedy. With respect, I hold the opinion that the then Rt. Honourable Lord President and the five Supreme Court Judges were innocent of the charges. The late Justice Wan Sulaiman and his panel of Supreme Court Judges must forever be remembered and commended for their courage and uprightness in upholding the Rule of Law and the independence of the Judiciary; for which they paid a high price.

Tun Suffian Hashim

Yes, by now, after some 27 years since that dark episode, the Judiciary has probably recovered, but still to a very limited extent. The negative public perception against the Judiciary is still there. Indeed, as the late Tun Suffian (a former Lord President-picture above) had said many years ago in his speech in honour of the late Tan Sri Wan Sulaiman (one of the two Supreme Court judges that was unjustly dismissed in the assault of 1988) on March 10, 2000, ‘I had predicted that our Judiciary would take a whole generation to recover from the assault. Now more than 12 years have lapsed. I doubt if the Judiciary would recover in a generation from today’.

 http://www.thestar.com.my/news/nation/2015/09/20/1988-assault-on-our-judiciary-was-a-judicial-nightmare/

Justice C. J. Wigneswaran put it more succinctly.  According to him,

Faith in the administration of justice is one of the pillars on which democratic institutions function and sustain. To establish that faith, Judges must do what is right both legally and morally. Whatever difficulties you face from outside agencies you must try your best to do what is legally and morally expected of you. For that we must require a degree of detachment and objectivity in judicial dispensation.

The Future?

The worldwide launch of the 2015 CPI will be on  January 27,  2016 simultaneously in over 120 countries. When the results come out in 2017, there will be few takers for the bet that Malaysia will have improved its ranking in the CPI index.

Our Judges must accept criticisms


January 13, 2016

Our Judges must accept criticisms

by The Phantom Busybody

http://www.themalaysianinsider.com

Tan Sri Ariffin Zakaria2

Much ado has been made about Dato’ Zaid Ibrahim’s describing the judges of the Court of Appeal as heartless following their decision in the Indira Gandhi unilateral conversion case.

Personally, I would urge the Judiciary to learn to deal with such criticism by simply ignoring them unless there is a gain of truth in such criticism. In an increasingly globalised world where freedom of speech is recognised as an irreducible minimum in human rights, the judiciary must move with the times and not insist upon sticking to Malaysian “standards”.

The United Kingdom, which is the main source of our rich common law heritage, had in 2013 enacted the Crime and Courts Act which abolished the offence of scandalising the Judiciary as a form of contempt of court. Judges in the UK have been subjected to some of the most trenchant criticism.

A classic example involved former Northern Ireland Secretary Peter Hain who criticised Lord Justice Girvan’s handling of a judicial review application in his autobiography, describing the judge as “off his rocker” i.e insane.

When debating on his amendment to the Crime and Courts Bill, Lord Pannick criticised the decision to prosecute Mr. Hain. He remarked that “…surely a former Secretary of State, or indeed any citizen, should be able to express his views about a judge without being threatened with a prison sentence.

If the Attorney-General for Northern Ireland is going to revive this otherwise moribund branch of the criminal law, Parliament should kill it off before it does any further damage. There is simply no justification today for maintaining a criminal offence of being rude about the judiciary – scandalising the judges or, as the Scots call it, murmuring judges.”

Lord Pannick also went on to say that “We do not protect other public officials in this way. Judges, like all other public servants, must be open to criticism because, in this context as in others, freedom of expression helps to expose error and injustice. It promotes debate on issues of public importance.

A criminal offence of scandalising the judiciary may inhibit others from speaking out on perceived judicial errors. I would be surprised to learn that this view was not shared by the vast majority of serving judges… Since the Attorney General of Northern Ireland has woken up this pitiful legal animal, we should take this opportunity to put it finally to sleep.”

In the United States, a recent dissent by the Chief Justice of the Supreme Court in the case of Obergefell v Hodges 2015 invited acerbic criticism from Richard Posner, a judge of the lower Seventh Circuit court. He had this to say – “…the chief justice’s dissent is heartless…Gratuitous interference in other people’s lives is bigotry.” Posner was quite simply describing the chief justice as heartless and a bigot. Yet he was not prosecuted.

As if describing judges as heartless in statements or articles is not enough, 27 years ago, the Association for Children for Enforcement of Support presented “Heartless” awards to two judges of the Tuscaloosa County Circuit Court, Judge Conger and Judge Jim Embry. The awards were presented to recognise the two individuals as the worst judges for showing lack of concern of enforcement of child support.

I would call upon the Malaysian Judiciary to emulate the spirit of Lord Denning when he held in the case of R v Commissioner of Police (1968): “Let me say at once that we will never use this jurisdiction (of contempt) as a means to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself.”

The most effective shield and breastplate of a judge is his reputation of integrity, impartiality, and wisdom. An upright judge will almost never have to resort to the power to convict for contempt in his judicial office.

Zaid Ibrahim takes on Arifin Zakaria and Gopal Sri Ram


January 11, 2016

Zaid Ibrahim takes on Arifin Zakaria and Gopal Sri Ram

http://www.themalaysianinsider.com

Zaid2

First Chief Justice Tun Arifin Zakaria chastised me for not reading the Court of Appeal’s judgment in the Indira Gandhi case before calling the judges names. The entire mainstream media carried the story.

A few days later, he was ably supported by retired Federal Court judge Gopal Sri Ram, who asked lawyers (meaning me) to read the judgment before criticising the judges. As if that were not enough, he also described me as a lousy politician for not lasting very long as a minister.

Sri Ram finally congratulated Arifin for defending the judges, and for asking them to write good judgments. For someone in active legal practice (despite having been a senior judge for so long) and who now appears before the Federal Court regularly, that’s not a bad precedent to follow.

I would first like to ask both of them to read my blog post properly. My blog is easier to understand than some of the judgments from the Federal Court these days. I write for the common people. I speak their language. I was never a good or erudite lawyer like Arifin or Sri Ram.

I was saddened by the Court of Appeal’s decision in Indira’s case. I was disappointed with the verdict. Reading the judgment will not make me feel any better. It’s the decision that nauseated me.

As with all previous judgments that disappointed me, the judges defend their decision by saying they were powerless because of something or other. It could be because of a previous decision, or because of Article 121(A), or because the matter rests with the Shariah Court. We have heard it all before. That’s the source of my exasperation.

I did not say the majority judges were heartless or the only ones at fault. I was expressing my frustration, not just at the Court of Appeal judges but at all the judges in the Federal Court in the last 10 years for their cavalier attitude towards fundamental liberties and for not asserting the core constitutional principles of our  legal system.

My question was, what kind of system do we have? I said the whole country has failed or has lost its soul, and as a result we have produced heartless judges. If a mother cannot be with her daughter for nine years, then the system stinks.

I don’t care if the Court of Appeal is bound by a 2014 Federal Court decision in Raimi Abdullah’s case. Why didn’t the Court of Appeal follow another Federal Court decision in 2007 in the case of Latifah Mat Zin, if that would have enabled them to give justice to Indira?

Gopal Sri Ram.jpg

Over the years I have seen that there has been no attempt to assert the  primacy of federal law over state laws, the  primacy of civil courts over the Shariah Court.

As in the Indira case, these judges always find, in cases where there is a conflict between shariah  and constitutional principle, the easy way out and suggest that non-Muslim parties seek remedy in the Shariah Court. That’s what incensed me. Read my blog post again.

Sri Ram said the Federal Court’s decision in 2014 in Raimi Abdullah’s case was the cause of the problem. I am sure it is, but I don’t care what the source of the problem is. It’s the heartless judges in Raimi’s case that started it all and which brought us to the latest judgment in Indira’s case, and which led me to describe all of them as heartless. That’s my opinion based on what had happened.

So the Court of Appeal was bound by the decision in the Raimi case.  Was the chief justice involved in that decision, that others had to follow it? Is Sri Ram saying that the chief justice is the source of the problem? If the judgment was handed down in 2014 then the present chief justice must have presided over the case. If he thinks the decision in the Raimi case was correct, then I am sorry for Indira and her team.

Now I have to pay the price for calling the judges “heartless”. The police are questioning me and I expect to be charged in court. In Malaysia, a senior judge can say the Bar Council should be happy that opposition leaders have won their cases, implying that the Bar is pro-opposition, but no police investigation will be carried out on him.

NSC's Najib

But I used words that upset some people in the Palace of Justice, and lo and behold, the police came calling immediately.

Those in Putrajaya who think any upcoming trial will be about me are sadly mistaken – it will be about them. I will defend my use of “heartless judges” vigorously, I will explain why those judges have failed their oath of office, not just in Indira’s case but in many others.

Justice has been denied to Malaysians for so long because the judges are heartless.

 

In conversions bind, did judges abdicate duty to heed precedents?


January 10, 2016

In conversions bind, did judges abdicate duty to heed precedents?

by  Dr. P Ramasamy

http://www.malaysiakini.com

COMMENT: I have respect for Dato’ Seri Gopal Sri Ram (pic above), the former Federal Court Judge. However, his recent article on the role of the judiciary on the matter of religious conversion seems a bit murky.

Read: https://dinmerican.wordpress.com/2016/01/10/the-indira-gandhi-case-judicial-escapism-by-court-of-appeal/

Sri Ram has come to the defence of the Court of Appeal’s decision that quashed the order of the Ipoh High Court that forbade the unilateral conversion of the three children of Indira Gandhi. While Sri Ram praised the stand taken by Zaid Ibrahim, the former Law Minister, for calling the majority decision “heartless” and “heart rending”, he nonetheless thinks that the majority decision of the Court of Appeal was not that “heartless” after all.

First, Sri Ram thinks that the Court of Appeal’s two judges who quashed the High Court decision had no choice but to rely on the earlier Federal Court decision.nIn other words, they were quite obedient to the decision of the Federal Court when it ruled in 2014, in the case of Haji Raimi Abdullah, that whether person is a Muslim or conversion of a minor into Islam was the sole jurisdiction of the Syariah Court. However, Sri Ram thinks that this obsequious adherence was wrong and smacks of “judicial escapism”. But yet he defends the “defenseless” decision of these two judges!

Second, he said that decision that went against the children was not that “heartless” after all, since the Court of Appeal did not interfere or strike down the decision of the High Court the certificate of conversion into Islam the eldest child of Indira Gandhi who turned 18. Since the eldest child continues to be a Hindu, the two judges cannot be simply accused of being “heartless” or “uncaring” about the family of Indira Gandhi.

No choice

Sri Ram is quite critical of the two judges for “obediently” following the dictates of the Federal Court and the other hand, he thinks that they had not choice but to follow a precedent that has been already set in the form of a Federal Court decision. He perhaps best knows how to explain this conundrum.

I beg to disagree with Sri Ram. Judges in the country cannot have the best of both worlds. It does not make sense to defend the judges on the grounds of adherence to precedents set by superior courts and yet expect them to follow their conscience.

And yes, I agree with Sri Ram that “judicial escapism” is wrong, but then how can you defend them for slavishly following dictates of superior courts. However, not all three judges in the Court of Appeal blindly adhered to the precedent set by the Federal Court. The judge who disagreed with the majority decision (decision of the two judges) went against the precedent.

Is Sri Ram saying that the dissenting judge erred in his decision? I would think that Sri Ram should have gone one step to examine the rationale behind the decision of the dissenting judge.Why did the dissenting judge refused to be dictated by the Federal Court’s precedent. In other words, is there a legal requirement to blindly follow precedents?

I am in agreement with Sri Ram as to the state of judiciary in the country. While we can blame governmental interference in the functioning of the judiciary to some extent, we don’t think that judges are “innocent” actors when it comes to making decisions or legal pronouncements.

Judges are expected to set standards and play a meaningful role in ensuring that there is healthy balance between the executive, judiciary and the legislative. Judges are also expected to make decisions that will be in keeping with changing times.

When it comes to decisions on religious matters there is trend that suggests that even the judges are finding difficult to detach themselves from the prevailing state-driven agenda, that seems to prioritise the dominance of one set of beliefs to other set of beliefs.

As Sri Ram himself pointed, let us not take the country along a dangerous judicial path where a wrong decision by a superior court is blindly and slavishly adhered to render other court decisions null and void.

Let not the courts in the country abdicate their duties and responsibilities to government agencies and quasi-agencies that have little or nothing to do with the dispensation of justice in the country.


Dr. P RAMASAMY is Deputy Chief Minister II of Penang and the state assemblyperson for Perai.

The Indira Gandhi Case –Judicial Escapism by Court of Appeal


January 10, 2016

The Indira Gandhi Case– Judicial Escapism by Court of Appeal

by Dato Seri Gopal Sri Ram

http://www.themalaysianinsider.com

In my view, the decision was wrong for reasons not relevant here. It is my respectful view that as a matter of law the issues framed in Raimi are matters of statutory and constitutional interpretation solely within the jurisdiction of the ordinary courts established by the Federal Constitution and that the Federal Court fell into serious error in holding otherwise.

It is for the Federal Court now to decide whether to emerge from the trap of judicial escapism or remain in it.But that aside, as a matter of pure judicial discipline the majority was bound to follow and apply the decision of the Federal Court despite any personal sentiments the majority may have felt about the correctness of the decision.That is how the system works. That is how the system works. And that is how it has worked for centuries in the common law.–Gopal Sri Ram

Lawyer Gopal Sri Ram © arrives at the Federal Court in Putrajaya, outside Kuala Lumpur on October 30, 2014. The Malaysian Insider/Najjua Zulkefli

Dato Seri Gopal Sri Ram –The Malaysian Insider/Najjua Zulkefli

Datuk Zaid Ibrahim is more a lawyer than a politician. That is why he did not last for long as Law Minister. He is a man with a strong conscience. That is why one can understand his chagrin at the decision of the Court of Appeal in what has come to be called as the Indira Gandhi case.

The facts tell a heart rending story of a mother from whom her children were torn away by her husband. We are therefore all on her side, as it were. It is out of his frustration at the result that Zaid called the majority judgment in the appeal as heartless.

But while his anger is just, Zaid has addressed the wrong target. Having read the majority judgment the following points become clear. First, the Court of Appeal refused to interfere with the decision of the High Court quashing the certificate of conversion into Islam of the eldest child who had turned 18.

So the order quashing the certificate of conversion of the eldest child stands. And that means that the eldest child is and continues to be a Hindu. In fairness to the majority therefore its decision at least to this extent can hardly be described as heartless.

What then is the right target? In coming to its decision the majority’s main ground was that it was bound by the decision of the Federal Court in Haji Raimi Abdullah decided in 2014 where it was held that the issue whether a person professes Islam and whether the conversion of a minor into Islam is valid are solely within the jurisdiction of the Shariah Court.

Interfaith_child_custody-appeal-03_2407_620_412_100

In my view, the decision was wrong for reasons not relevant here. It is my respectful view that as a matter of law the issues framed in Raimi are matters of statutory and constitutional interpretation solely within the jurisdiction of the ordinary courts established by the Federal Constitution and that the Federal Court fell into serious error in holding otherwise.

It is for the Federal Court now to decide whether to emerge from the trap of judicial escapism or remain in it.But that aside, as a matter of pure judicial discipline the majority was bound to follow and apply the decision of the Federal Court despite any personal sentiments the majority may have felt about the correctness of the decision.That is how the system works. And that is how it has worked for centuries in the common law.

Very recently in England, a judge of the High Court said that the UK Supreme Court had got the law all wrong on a particular subject and proceeded to misapply it. The Court of Appeal allowed the appeal by consent and sent it back to the same judge who then proceeded to attack the decision of the Court of Appeal.

Again an appeal was preferred and again the appeal was allowed by consent. The matter was sent back to a different judge. The expense incurred by the litigation was considerable.And all because a judge was disobedient to precedent.

To return to the point made. Yes, the decision of the majority in Indira’s case appears heartless. But that is not the fault of the Court of Appeal which was acting in obedience to precedent.

It is important for lawyers to carefully read the judgment in a case before criticising it. I recall when in the Court of Appeal we allowed an appeal and quashed the conviction of an accused charged for rape because there had been serious departures from procedural justice.

The then Attorney-General Tan Sri Abdul Gani Patail without reading our judgment launched a tirade upon us. We remained silent. We then produced our judgment. It showed that the Attorney-General was way off target. But there was no apology. We expected the Chief Justice to come to our defence as we could say nothing. But the then Chief Justice was a weak and intellectually retarded person to whom the law was a chore.

It is heartening to see Tun Arifin Zakaria come to the defence of his judges while justly rebuking them for producing poor quality judgments. Our judges must take pride when writing judgments and we must return to that time when the judgments of our courts were treated with respect by the courts of other jurisdictions.

* Datuk Seri Gopal Sri Ram is a former Federal Court judge.