SUNDAY- 15TH JUNE 2008-
MALAYSIAN JUSTICE ON TRIAL….AGAIN?
Last week in the Borneo Post it was reported that Sabah High Court Judge Justice Datuk Ian H. C. Chin revealed that a former prime minister had threatened judges. He also said that he and selected judges were sent to a boot camp to ensure they got the message.
Justice Chin said this before hearing an election petition challenging the results of the Sarikei parliamentary seat which was won by a BN candidate by just 51 votes.
In a report that comes hot on the heels of the findings of the Royal Commission on the V.K. Lingam video clip, Justice Chin said the threat from the former prime minister came after he handed down two judgments in 1997.
‘Boot Camp Judge’ Datuk Ian Chin
“Shortly after the two judgments, a Judges Conference was held from April 24, 1997 where the then prime minister issued a thinly veiled threat to remove judges by referring them to a tribunal and stating that, though it might be difficult to do so, it was still done.”
A month later, Justice Chin said he and select judges and judicial officers were packed off to a boot camp from May 26-30, 1997 where there was an attempt to indoctrinate them with the view “that the Government’s interest was more important than all else.”
Justice Chin added “the perversion of justice” continued and recounted an episode when a fellow judge Muhammad Kamil Awang told him he had received a telephone call from the then Chief Justice asking him to dismiss the election petition that he was going to hear in Kota Kinabalu.
“We went into the possibility of making a police report or of writing to the Chief Justice a letter to record what he had said over the telephone but in the end he decided against it since it would be his word against that of the Chief Justice,” he said.
Justice Chin said he was happy to later on learn that Kamil did not bow to the pressure and went on to hear the petition, thereafter making a decision based on law and evidence.
HARRIS MOHD SALLEH v RETURNING OFFICER & ORS
It appear that Justice Chin was referring to a Sabah election petition case heard by Justice MUHAMMAD KAMIL who in the conclusion of his judgement said ”I seize this opportunity to record a few observations that a worrisome trend or culture, not borne out of Malaysian culture, has evolved where public institutions or government departments do not seem to care to respond to letters or reports received from the public. Such letters or reports seemed simply ignored, invariably no response or acknowledgement or receipt whatsoever has been made. For example, from personal knowledge in a few cases: where my son had applied for a temporary work permit which was refused, and I wrote an appeal to the authority concerned; and in another case, my daughter had applied for a scholarship for a one year post graduate course. In both cases there was no acknowledgement despite reminders, although earlier on, personal assurances of favourable considerations had been given. Regrettably this is the very antithesis to good governance in as much as a threat to the government’s effort to foster good relationship and integration between East and West Malaysia.
It has been said that a government is a trustee of the people, and being elected by the people, it owes a higher responsibility to the people. The government must act honestly and responsibly.
The only guide to a man is his conscience, the only shield to his memory is the rectitude and the sincerity of his action. In my view, it is an insult to one’s intelligence to be given a directive over the phone that these petitions should be struck off without a hearing, and above all, it is with prescience conscience that I heard these petitions. God has given me the strength and fortitude, as a lesser mortal, to act without fear or favour, for fear of a breach of oath of office and sacrifice justice, and above all to truly act as a judge and not a ‘yes man’.”
“Malaysian Justice on trial” & INSAS BHD & ANOR v DAVID SAMUELS & ORS
In 1996 Insas Bhd (plaintiffs) filed a libel action instituted by the plaintiffs against the David Samuels and others (defendants) arising out of the publication of a feature article entitled ‘Malaysian Justice on Trial’ (‘the said article’) which was published in the November 1995 issue of the International Commercial Litigation Magazine (‘the Magazine’). The magazine is published in London and circulated in Malaysia and elsewhere. Insas Bhd (‘the first plaintiff’) was at the material time a company listed on the Kuala Lumpur Stock Exchange. Megapolitan Nominees Sdn Bhd (‘the second plaintiff’) was at the material time a licensed stock broking company. The second plaintiff was the wholly owned subsidiary of the first plaintiff. David Samuels (‘the first defendant’) was at the material time a staff writer of the said magazine and also the writer of the said article. Joff Wild (‘the second defendant’) was at the material time the editor of the said magazine. Robert Menzies Walker (‘the third defendant’) was at the material time the editorial publisher of the said magazine. Euromoney Publications PLC (‘the fourth defendant’) was at the material time the proprietor and publisher of the said magazine.
In their statement of claim, the plaintiffs pleaded that the natural and ordinary meanings of the words complained of in the said article were meant and were understood to mean that the plaintiffs and each of them had connived at, and participated in the corruption, or the attempted corruption by one Datuk of the Malaysian judiciary, in the course of the plaintiffs’ litigation against Ayer Molek Rubber Company Berhad in Malaysia.
On 20th October 2004, Justice KAMALANATHAN RATNAM J gave his ruling and said that the said article was clearly defamatory of and concerned the plaintiffs. The words complained of bore the natural and ordinary meaning pleaded by the plaintiffs, that is, the plaintiffs had connived at, and participated in the corruption or the attempted corruption by Datuk of the Malaysian judiciary, in the course of the plaintiffs’ litigation against Ayer Molek Rubber Company Berhad.
The defamatory words contained in the said article and complained of by the plaintiffs are set out in para 7 of the statement of claim which is as follows:
On pages 10 to 14 of the November 1995 issue of the International Commercial Litigation (hereinafter referred to as ‘the Magazine’), in a feature article entitled ‘Malaysian justice on trial’ (which article was the cover story for that issue, and was highlighted on the front cover of the Magazine), and which contained the following defamatory words:
Malaysia’s reputation for judicial integrity is being questioned. David Samuels reports that a string of controversial court decisions is the cause of mounting concern among the country’s lawyers and foreign investors.
Malaysian justice on trial
On 10 April 1995, a Malaysian lawyer was granted an ex parte order by the High Court, compelling a company to register a block of shares owned by his client. The kind of thing that happens all the time.
But this was no routine case. This was different. It ended with Malaysia’s supreme court criticizing the country’s Appeal court in terms which were far from judicial, and the President of the Malaysian Bar Council talking of ‘very serious questions over the administration of justice in Malaysia’.
The case in question was the Ayer Molek case. And it was the culmination of a series of court decisions in commercial cases which has caused many of Malaysia’s leading lawyers to raise doubts about Malaysia’s legal system.
‘The ultimate fear about Ayer Molek and all of these cases is that they mean Malaysia is going the way of other Asian countries, such as Indonesia, Thailand and the Philippines’, says Raphael Pura, the Malaysia correspondent to the Asian Wall Street Journal. ‘The implication is that, just like those other countries, Malaysia is becoming a place where justice is now “up for bid”.’
Until now, Malaysia, which enjoyed economic growth of 9.5% in the first half of 1995, has been able to portray itself as a country largely free from corruption. As a result, the Government has succeeded in attracting some of the biggest foreign names in manufacturing. Apple Computers, Citroen, Motorola, General Electric and Hewlett Packard all chose Malaysia as their base when they set up manufacturing operations in Asia.
The court cases to which Pura refers, and which could seriously affect Malaysia’s reputation as a major financial centre, have all occurred within the last year. They came to a head in August, when the Ayer Molek case provoked a row between the Federal Court and the Court of Appeal, Malaysia’s two highest courts. Because of the cases, Malaysians from all walks of life have openly started to question the independence of their judiciary.
On 28 August, Puan Hendon, the President of the Malaysian Bar Council, issued a press statement saying the ‘differing views and comments’ of the two courts raised ‘very serious questions over the administration of justice in Malaysia’. In response, Eusoff Chin, Malaysia’s most senior judge and the author of the Federal Court judgment which criticized the Court of Appeal, issued a statement saying the Bar Council should have discussed the matter with him privately before they went ‘to yell in the press’.
Politicians also became involved. Lim Kit Siang, Secretary General to the DAP, Malaysia’s largest opposition party, said that there was ‘a new crisis of confidence over the judiciary in Malaysia’. Then Prime Minister Tun Dr Mahathir Mohamad told the Bar Council and Chin on 7 September that their squabble was ‘destabilizing’ the Malaysian legal system.
The Ayer Molek case
The case of Insas and Megapolitan Nominees v Ayer Molek Rubber Company concerned court action brought to force the rectification of Ayer Molek’s share register after the M$157m (63m) purchase by Insas and Megapolitan, two related investment houses, of 30% of Ayer Molek’s shares in 1994. It produced very sharp criticisms from the Court of Appeal about the conduct of one plaintiff lawyer, VK Lingham of VK Lingham & Co, accusing him of illicit manoeuvring to put the case before a High Court judge of his choice.
At the hearing, the Court of Appeal, saying that it was ‘using its inherent power to stop further injustice from occurring’, gave Ayer Molek an order to stop Insas and Megapolitan exercising any rights over their shares. Five days later, it delivered its written judgment on Ayer Molek’s appeal. It called the situation produced by the High Court’s treatment of the case ‘an injustice perpetrated by a court of law’.
The Court of Appeal also strongly criticized Lingham for taking a commercial matter, the registration of shares, to a division of the High Court which should only deal with administrative law cases. It said his conduct would give ‘right-minded people the impression that some litigants are able to choose the judge before whom they wish to appear’. Insas and Megapolitan appealed to the Federal Court, Malaysia’s highest court, which held a hearing on 1 August.
The Federal Court overturned the Court of Appeal’s judgment and censured the lower court for its comments. In an 12 August judgment, it accused the Court of Appeal of itself ‘bringing the administration of justice into disrepute’ by ‘departing from sobriety’ and ‘going off on a frolic of its own’. The Federal Court said that, by discontinuing the High Court action, Ayer Molek could ‘be deemed to have conceded the ex parte order’. It expunged the sections of the Court of Appeal’s judgment which criticized Lingham.
On 8 September, the share sales to Insas and Megapolitan, and PFA Nominees, were finally cancelled and police investigations into the whole affair ceased. All law suits were withdrawn a week later.
Although the Federal Court overturned the lower court’s decision, the Court of Appeal’s comments brought the Ayer Molek case to the attention of the rest of Malaysia's legal profession. One lawyer notes ‘The Court of Appeal made it clear that it thought something funny had been going on in the High Court in that case. That was why they put in a Shakespearean quote about there being ‘something rotten in the State of Denmark’. It was a reference to the building the High Court is in, which is called Denmark House’.
Tommy Thomas of Skrine and Co would like to know how Lingham managed to ‘overcome two hurdles that are supposed to make it impossible for this misfiling to happen. First, you have to get the registry to admit the case in the wrong division. Then you have to persuade the judge himself to let it stay. The fact that the judge agreed to entertain this case really is a surprise’.
Another lawyer says: ‘Lingham’s action was like filing a commercial matter in the family court.
Yet another lawyer found the terms of the ex parte order that Lingham obtained highly irregular: ‘First, it is literally unheard of to be given a compulsion order which forces a company to register your shares except where you have tried everything else and it is your last resort. Here, Insas and Megapelitan, the two shareholders, who had not done anything at all about their shares for six months, suddenly were able to go to court and use this last resort compulsion procedure. What I do not understand is how they could get a judge to threaten Ayer Molek with contempt of court before Ayer Molek had actually refused to do anything.’
Another says: ‘At Lingham’s request, this judge even added mandatory imprisonment to the ex parte order. And then he refused to hear Ayer Molek’s case for two weeks or to suspend the order, although such orders only have a life-span of two weeks’.
There are various aspects of the way that the Federal Court dealt with Ayer Molek that also concern Malaysia's lawyers. ‘The case made it into the Federal Court at a startling speed’, says one. ‘I am appealing the same sort of order at the moment. I expect that to get it into the Federal Court will take at least six months. In Ayer Molek, it only took Lingham four days.’