| Rising To The Occasion Mr Justice R.K. Nathan behaves oddly these days. The stern scourge of the Bar Council and lawyers who challenge and question what should be now believes this is not only wrong but not conducive to national unity either. He is now convinced the mega defamation suits he once happily endorsed is wrong. He now changes his mind about bankrupting the Bar Council, and goes further to stress its importance in national unity. He believes, rightly, that these changes advance, more than hinder, national unity. For that he should be supported and acclaimed. He is the second judge, who having lost their heads under the now mercifully retired chief justice, Tun Eusoff Chin, now come back to sanity. He was on the point of resigning when it was rumoured that under the present chief justice, Tan Sri Dzaiddin Abdullah, he would have been better off in Tawau, the favourite corner to which Tun Eusoff consigned judges he did not like. But Tan Sri Dzaiddin is not Tun Eusoff. He does not operate in vengeance. Indeed if he had, he would have been no better than his predecessor. On Saturday (10 Mar 01), Mr Justice Nathan urged a lawyer, the Malaysian Bar and two others to settle their differences "in the spirit of national unity". Mr K. Raja Segaran wanted the Bar Council punished for daring to call a meeting to discuss the judiciary's independence and integrity, which he averred was contemptuous, sub judice and ultra vires. He wanted Mr Raja Segaran to withdraw the two suits, one yet to be heard. He had heard the one on 16 Nov 00 and due to deliver judgement on Saturday. "Any perseverance of this goal is now an exercise in futility, he said, referring to the retirement of Tun Eusoff, whose actions led to the suits. He wants bygones to be bygones. Clearly, other factors intrude. But he could just as well, indeed should have, dismissed the suits with costs. This confrontation between the retired chief justice and the Malaysian Bar has cost the latter plenty in legal costs. He told the Bar Council representatives: "I urge you to be gracious in accepting the hand of friendship offered by the plaintiff. Accept him, if you will, as the return of the prodigal son. Forgive him for the anguish and acrimony that have been caused." Were it that simple! How has he offered the hand of friendship? By withdrawing the suits, and apologizing in open court for what he did? Forgiving mr Raja Segaran does not end the matter: there is behind him a coterie of lawyers bent on reducing the Bar Council to impotency. They still remain. Which is why the problems inherent between the judiciary and the Bar remain very much alive. Mindboggling sums are demanded for carrying out what is its legal duty to justice and to the profession. Settling the matter, as Mr Justice Nathan suggests, is neither her nor there. He should have delivered the judgement -- and given what he has said no nobly, it should have been dismissed with costs, and leave it to Mr Raja Segaran to appeal if he so desires. Whatever action taken to settle this should come from Mr Raja Segaran: the Bar Council is brought to court for doing its legal duty to its members. I can understand Mr Justice Nathan's concerns. But he had a large hand in all this. It was he who wanted a lawyer jailed for a statement he made as a plaintiff. It was he who frequently threatened lawyers with contempt. If truth be told, when Tun Eusoff Chin was chief justice, his court, amongst others, could be relied upon to give special favours to the former's holiday companion and his friends. He cannot now say that since his retirement, such issues as inherent in the Raja Segaran case becomes moot. It does not. The case should have been clearly and unequivocally dismissed. With all due respect, what Mr Justice Nathan did is a cop out. He should reaffirmed what he now believes in with judicial sanction. M.G.G. Pillai pillai@mgg.pc.my |
| R K NATHAN - the best judge money can buy |
| Court Dismisses RM100 Million Libel Suit Against Prime Minister Date: Thu, 2 Sep 1999 07:35:11 +0800 (MYT) As expected, the High Court dismissed as frivolous the RM100 million defamation suit Dato' Seri Anwar Ibrahim brought against the Prime Minister. Mr Justice R.K. Nathan, in dismissing the case after preliminary objections were raised, restored to politician what Parliament removed from the rulers six years ago: while rulers have lost their constitutional immunity for their non-regal actions, politicians now cannot be sued for ex-cathedra stratements, however libellous or vindictive, in their official, and it would seem in their private, capacity. Mr Justice Nathan exculpates the Prime Minister for his allegedly libellous statements since they were in response to questions, and he commented on them only after two men were convicted, albeit under strange circumstances, of sodomy with the former deputy prime minister; that the manner in which the confessions of sodomy were obtained is subject of yet another appeal to the Court of Appeal. Dato' Seri Anwar's counsel, Mr Karpal Singh, said, after the suit was dismissed on Monday (30 August 1999), his intention to appeal. Dato' Seri Anwar, now in jail for six years after being convicted for corruption in circumstances that suggest he could not, possibly, have been acquitted, had filed the libel action after Newsweek magazine and the local newspaper, The Sun, published the Prime Minister's reaction to allegations of his homosexuality at a press conference after his arrest on 20 September. The Sun's response to the Anwar suit was to repeat the libel. Given the political climate, no one seriously believed the High Court would allow the case to proceed, a view Mr Justice R.K. Nathan upheld on Monday. Every application Dato' Seri Anwar has made in his journey to seek justice has been dendied by the High Court and is now before the Court of Appeal, and the latest case is no expection. The judge dismissed the defamation suit as "obviously unsustainable, frivolous, vexatious and an abuse of the process of the court". The "primus inter pares of the country" and his Cabinet colleagues be protected from such frivolous, vexatious and abusive suits; "otherwise rather than running the country towards achieving peace and prosperity for its citizens, the officials of the Government will forever be looking over their shoulders for fear of being dragged into court with an unwanted but well-heraleded suit." Though no one is above the law, the court must be "ever vigilant, never indolent, ever watchful, never fearful of its duty to check on the conspiratorial machinations of parties or persons -- motivated with the express desire of dragging top officials who run the country to court -- with the intent to cause nothing more than embarassment to such officials," he added. Parliament never intended that politicians, be he Prime Minister or cabinet minister, should be immune from legal action. The Sultan of Pahang was hauled to court over a land deal that went sour after the constitution stripped the rulers of their immunity for their non-regal actions. When politicians and cabinet ministers sue people for tens of millions of ringgit, Mr Justice Nathan's decision implies they have the right to immunity; but no one can sue them since they should not be hindered, as Mr Justice Nathan puts it, in "running the country towards achieving peace and prosperity for its citizens". Politicians now have greater immunity than the rulers. This is bad law, sets a dangerous precedent. The UMNO legal panel files "obviously unsustainable, frivolous, vexatious and abusive" defamation suits against those who defame them. But Mr Justice Nathan's decision implies that citizen has no recourse to the courts if the politician defames them. He said, inter alia, that the Prime Minister "duty bound" to inform the public about the deputy prime minister's behaviour; one would have hoped that, more than this, the Prime Minister had the same "duty bound" compulsion to inform the citizens about the way he runs this country, the cost of Putra Jaya, the seriousness of Malaysia's appalling financial condition ... the list is endless. He is excused from all that, but woe betide the hapless individual who decides to sue the Prime Minister or a cabinet minister for defamation: the High Court,in its infinite wisdom, has decided he has more inherent rights than the nine constitutional rulers. M.G.G. Pillai pillai@mgg.pc.my |
| Justice In Jeopardy: Disturbing questions DISTURBING QUESTIONS questions arise from Judge R.K. Nathan's injunction yesterday to frustrate the Malaysian Bar's EGM today. No one believed the court would not grant the injunction, the high drama aside, such is the judiciary's predictability in such matters it perceives to be beyond questioning. The EGM was to call for a tribunal to consider the de facto law minister, Dato' Rais Yatim's strictures against the chief justice's unusual holiday arrangements with a favourite lawyer. The chief justice should not have assigned the case since the Malaysian Bar would have discussed his conduct. He did. Judge Nathan himself said he could not refuse to hear the application since the chief justice had assigned it to him. He heard the earlier injunction application by the same lawyer, Mr Raja Segaran, over a similar matter, and if the decision in the Locobail case is applied, he should have recused himself since he would have made up his mind. What Judge Nathan's decision implies is to inform the world that the Malaysian Bar would not be allowed to discuss matters affecting the administration of justice. He raises an irrelevant question if the de facto law minister, Dato' Rais Yatim, did make the contentious criticism of the chief justice. If he did not make it, why did Tun Eusoff Chin get hot under the collar and refer to him as the law minister in charge of tables and chairs? Indeed, if Dato' Rais had been misquoted, he would have been the first to demand a correction. Is Judge R.K. Nathan, who presides over the Defamation Court, the right judge to hear the injunction petition? Practice Direction No 1 of 1989 states the proper court to hear applications for injunctions is the High Court's Special Powers and Appellate Division. As far as I know, this has neither been superceded nor withdrawn. Counsel for the Malaysian Bar raised this in a preliminary objection, but Judge Nathan insisted that since the chief justice assigned him the case, he not only could not refuse to, but certainly would, hear it. The chief justice must now explain why he assigned the case to Judge R.K. Nathan and not to either Judge K.C. Vohrah or Judge Faizal Thamby Chik of the Special Powers and Appellate Division. Judge Nathan's irrelevant observation that since Judge Vohrah and Judge Faizal has siblings and children at the bar, the same objection would disqualify them, if the Bar's contention is upheld. Judge Vohrah recently in a case before him in which I am a party, said he would disqualify himself if the other party objected since he and I were law school classmates at the University of Singapore four decades ago, even if we had met only a dozen times or less since, and at chance meetings. If the matter had arisen before him, he would have. So would Judge Faizal. As Judge Nathan should have. This injunction questions the administration of justice even more than a resolution by the Malaysian Bar at an EGM could have. A surat layang about the earlier injunction Mr Raja Segaran obtained already raises doubts about it. Whether this is true or not is irrelevant. It is so widespread that besides the email I received about it, I have had copies shown to me by people remotely connected with the courts, in Kuala Lumpur and out of town. When officialdom questions the veracity of news reports, people resort to sending surat layang, anonymous letters based on some truth, but which reflect frustrations on the ground. That this made its appearance a week or so before the injunction only raised more doubts about the proceedings, let alone the injunction. This is to be expected. Only the judiciary believes what it does is in accord with the principles of justice. It would refuse to accept applications because of minor correctable mistakes, yet would not baulk at refusing to deliver judgement 30 months after the hearing. It would not censure its chief justice for his unusual links with his favourite lawyer, but would not allow the Malaysian Bar to discuss a proposal to call for a tribunal to discuss a minister's concern about the propriety of it all. When all is said and done, the Malaysian Bar should not have called for the EGM. It should have set up a special committee, as it is authorised to, to submit a report which could be submitted to the authorities for possible action. With the courts willing to award costs running into the millions of ringgit in legal costs -- the chief justice's friend, Dato' V.K. Lingam, told me, after the libel action Tan Sri Vincent Tan brought against me, and in which he wrote Judge Mokhtar Sidin's judgement, that his legal fees would be "only" RM1,000,000 -- the Malaysian Bar should be more proactive and do its work quietly and competently, instead of playing to the gallery. As Dato' Param Cumaraswamy, the UN special rapporteur for judges and lawyers, said in a recent article, the Malaysian constitution contains a Judicial Code of Ethics, to which Tun Eusoff is bound, which provides for a tribunal to consider a judge's fitness for office if he so much as breach one of its provisions. Bringing disrepute to the office he holds is sufficient reasons for a tribunal. There are many ways to skin a cat. The Malaysian Bar should look at other alternatives that needless confrontation. M.G.G. Pillai pillai@mgg.pc.my |
| Keputusan Mesyuarat Dasar III (KAE) KeAdilan Antarabangsa Eropah (KAE) London Oxford Manchester Birmingham Glasgow Bristol Birmingham Cardiff Dublin Hamburg Geneva Brussels Blois Keputusan Mesyuarat Dasar III KeADILan Antarabangsa Eropah Pengerusi: Ketua Cawangan Birmingham Kenyataan Media: KeADILan Antarabangsa Eropah Mendesak Penggantungan Jawatan Ketua Hakim Negara MUQADDIMAH Sesungguhnya sistem kehakiman yang mantap, bebas dan berkecuali merupakan batu asas yang penting dalam mana-mana demokrasi. Untuk itu, sebuah negara seperti Malaysia harus mempunyai hakim-hakim yang bijaksana dan disegani rakyat. Tanpa rasa hormat daripada rakyat, hakim-hakim tidak akan dapat melaksanakan tugas dengan baik. Krisis keyakinan ini telah mula muncul akibat tindakan tidak sah Perdana Menteri Dr Mahathir Mohamad menghasut Seri Paduka Baginda Yang di-Pertuan Agong VIII untuk memecat Ketua Hakim Negara Tun Salleh Abbas serta Hakim-hakim Mahkamah Agung Tan Sri Wan Sulaiman dan Datuk George Seah. Seterusnya Perdana Menteri telah campur tangan dan mempergunakan hakim-hakim seperti Tun Eusoff Chin, Tan Sri Lamin Yunus, Datuk Ajaib Singh, Datuk Mokhtar Sidin, Datuk Wan Adnan, Datuk R.K. Nathan, Datuk Ariffin Jaka dan Datuk Augustine Paul Sinnathamby untuk mengeluarkan keputusan yang jelek dan bertentangan dengan undang-undang negara serta "hukum alam" (natural justice). KESIMPULAN Akibatnya, rakyat Malaysia tidak lagi percaya kepada sistem kehakiman negara dan Malaysia dicemuh di mata dunia sebagai negara yang mengamalkan sistem perundangan yang primitif dan bebal. KeADILan Antarabangsa Eropah dalam mesyuaratnya di Dewan Malaysia London pada 12 Julai 2000 telah membincangkan krisis kehakiman yang wujud di negara kita akibat hilangnya keyakinan rakyat terhadap Yang Amat Arif Tun Mohd Eusoff Chin, Ketua Hakim Negara. Krisis keyakinan ini berpunca daripada tindakan Tun Eusoff yang bersekongkol dengan cara yang mencurigakan bersama para peguam yang mewakili responden dan plaintif dalam kes yang dibawa ke hadapan pengadilannya. Tun Eusoff telah bertindak dalam cara yang menimbulkan syak dan mungkin terlibat dalam perbuatan yang boleh ditakrifkan sebagai rasuah. AGENDA TINDAKAN Oleh itu, KeADILan Antarabangsa Eropah dengan sebulat suara merafak sembah Ke Bawah Duli Yang Maha Mulia Seri Paduka Baginda Yang di-Pertuan Agong agar menggunakan perogatif baginda untuk menggantung jawatan Tun Eusoff sebagai Ketua Hakim Negara dengan serta-merta. Oleh kerana sebuah tribunal yang akan mengadili Ketua Hakim Negara hanya boleh diwujudkan dengan nasihat Perdana Menteri, kami juga mendesak Seri Paduka Baginda agar mengambil langkah memastikan bahawa tribunal tersebut dianggotai oleh hakim-hakim yang berwibawa. KeADILan Antarabangsa Eropah mendesak Seri Paduka Baginda agar melantik hakim-hakim berwibawa untuk merangka Kod Etika Kehakiman yang baru di bawah satu Suruhunjaya Diraja khusus untuk tujuan tersebut. Kami mencadangkan agar bekas ketua-ketua hakim negara iaitu Yang Amat Berbahagia Tun Muhammad Suffian Hashim, Duli Yang Maha Mulia Sultan Azlan Muhibbudin Shah, Yang Amat Berhormat Tun Salleh Abbas dan Yang Amat Berbahagia Tun Hamid Omar dilantik untuk merangka Kod Etika tersebut. Rakyat sudah hilang kepercayaan terhadap Ketua Hakim Negara dan hakim-hakim yang lainnya. Jika Seri Paduka Baginda tidak bertindak segera, keluhuran undang-undang yang menjadi salah satu tunggak Rukunegara akan pupus. PENUTUP Sekali lagi, KeADILan Antarabangsa Eropah merafak sembah Ke Bawah Duli untuk segera bertindak. Dirgahayu Tuanku! KeADILan Antarabangsa Eropah Mesyuarat Dasar III Dewan Malaysia London 12 Julai 2000 KeADIlan Antarabangsa Eropah terdiri daripada masyarakat Malaysia yang sedang menuntut atau bermastautin di Eropah. Bermula dengan Deklarasi 2000, KeADILan Antarabangsa Eropah bergiat memperjuangkan isu-isu keadilan dan kesejahteraan tanah air di kalangan masyarakat Malaysia, NGO dan kerajaan-kerajaan negara luar. Cawangan-cawangan KeADILan Antarabangsa Eropah telah ditubuhkan di London, Oxford, Manchester, Birmingham, Glasgow, Bristol, Cardiff, Dublin, Hamburg, Geneva, Brussels dan Blois. |