Righting a Wrong

by NH Chan

JAN 26, 2010 — What is the duty of a judge? It is to administer justice according to
law. It is the simplest duty in the world. Anyone with integrity who is fair-minded can
be a judge. This is why I have always tried to impress on my readers that it is so easy to
be a judge. The hyperbole of the unjust judges who have been telling us in their unjust
decisions that the words in a statute mean whatever they want them to mean, will no
longer be tolerated by us common folk. The common people of this country will be able
to expose the Humpty Dumpty judges for what they really are. The general public is no
longer gullible. Unjust judges can no longer mask their hyperbole judgments with
unintelligible garbage. This is possible today because most people now know how to
judge the judges.
I

I T is this awareness of the true

meaning of justice that the common
man can judge the judges. Anyone
can be a judge. All that you need to be
legally obligated to restate the law
since the error committed was so
obvious and blatant”.

one is to be fair-minded yourself and to
show by your conduct and behaviour in a
court of law that you deal out impartial
justice – for justice must not only be
done, it must be seen to be done. The
other attribute of a judge is to administer
justice according to law.
Shortly stated, justice means that the
judge’s duty is to do the right thing. The
right thing to do is to deal out impartial
justice. The right thing to do is also to
apply the law as it stands. As the late Lord
Denning once said, The Discipline of Law,
page 8:
One thing you will not be able to avoid –
the nervousness before the case starts.
Every advocate knows it. … No longer now
that I am a Judge. The tension is gone.
The anxiety – to do right – remains.” (the
emphasis is mine)
In the case of Tan Ying Hong v Tan Sian San
and Ors, the Federal Court on Thursday, 21
January 2010, held that its decision in
Adorna Properties Sdn Bhd v Boonsom
Boonyanit in 2000 was wrongly decided
and therefore not to be followed. By so
deciding this Federal Court has done the
right thing.
Chief Justice Zaki Azmi said that “he was
Righting a Wrong - NH Chan
Comprising the panel of this Federal Court
were Chief Justice Zaki Azmi, Alauddin
Mohd Sheriff, President Court of Appeal,
Arifin Zakaria, CJ (Malaya), Zulkefli Ahmad
Makinudin and James Foong Cheng Yuen
FC JJ. Doing the right thing is the duty of
every judge. Here, these judges did the
right thing; they applied the statute as it
stands.
But do you recognise or remember these
judges? Three of them were among the
infamous five who decided Zambry v
Sivakumar in the Federal Court. In case
you have forgotten who the infamous five
were, they were Alauddin Mohd Sheriff
PCA, Arifin Zakaria CJ(M), Nik Hashim Ab.
Rahman, Augustine Paul and Zulkefli
Ahmad Makinuddin FCJJ. The story
exploded on the front page of
the Star newspaper of Friday, 17 April
2009 with the startling headline, “Court:
Siva does not have right to suspend
seven”. The report reads:
“PUTRAJAYA: The Federal court has
unanimously ruled that Perak Assembly
Speaker V Sivakumar does not have the
power to suspend the Mentri Besar Datuk
Zambry Abd Kadir and six executive
council members from attending the
assembly. … Court of Appeal president
1/4
Justice Alauddin Mohd Sheriff, who
chaired a five-men panel yesterday, said
the Speaker’s decision to suspend the
seven applicants was ultra vires (outside
the law) and invalid.”
In an article that was posted on the
Internet I wrote:
This is a perverse judgment of the Federal
Court. It is perverse because it is a
decision that was made in blatant
defiance of Article 72(1) of the Federal
Constitution that says, “The validity of
any proceedings in the Legislative
Assembly of any State shall not be
questioned in any court”. The judges of
the Federal Court have failed the people
and the government of this country when
they chose to ignore the law of the
Constitution of Malaysia. In other words
the judges have refused to do justice
according to law.
Incidentally, ultra vires does not mean
“outside the law”. It means “outside one’s
jurisdiction, beyond the scope of one’s
power or authority”. And we may ask, who
is the Federal Court to say what is beyond
the jurisdiction of the Speaker when the
supreme law of the country says, “the
validity of any proceedings in the
Legislative Assembly of any State shall
not be questioned in any court”.
So you are now aware that the same three
judges were members of the infamous five
in Zambry v Sivakumar. These three
blatantly refused to apply Article 72(1) of
the Federal Constitution as it stands. Until
they recant from what they had done
ignominiously in Zambry v Sivakumar they
will not be forgiven. Their name will
remain in infamy until they take steps to
redress the wrong that they had done.
Remember this: “The evil that men do
lives after them.” – Shakespeare, Julius
Caesar, Act 3, scene 2.
And what about Chief Justice Zaki Azmi, is
he to remain unscathed?
I shall refer to some excerpts from my
book How to Judge the Judges, 2nd
Righting a Wrong - NH Chan
edition, so that you can judge the Chief
Justice for yourself. See An Addendum to
the Asean Security Paper Mills’ Case, on
page xxxix of the book:
If you will recall, see p 181 et seq. when
the Federal Court overruled the decision
of the Court of Appeal it resulted in the
insured plaintiff Asean Security Paper Mills
Sdn Bhd obtaining judgment against the
insurers on their policy of fire insurance in
respect of the goods destroyed in the fire.
One of the insurers then applied under r
137 of the Rules of the Federal Court 1995
for a review. The application for a review
was turned down by the Federal Court in
Asean Security Paper Mills Sdn Bhd v Mitsui
Sumitomo Insurance (Malaysia) Bhd [2008]
5 AMR 377 (Abdul Hamid Mohamad CJ,
Zaki Azmi PCA and Zulkefli Ahmad
Makinuddin FCJ).
As you would probably know the judgment
of PS Gill J (as he was then) in the High
Court was an unjust decision. An appeal by
the insurers to the Court of Appeal was
allowed. But the Federal Court reversed
the decision of the Court of Appeal – You
can read all about it in the book. But what
is very disturbing is the reason given by
the Federal Court in rejecting the
application for a review by the insurance
company. This is what Chief Justice Abdul
Hamid Mohamad said, p 382 of the law
report:
“However, I accept that, in very limited
and exceptional cases, this court does
have the inherent jurisdiction to review its
own decision. I must stress again that this
jurisdiction is very limited in its scope and
must not be abused. I have no difficulty in
accepting that inherent jurisdiction may
be exercised in the following instances:
…”
I have commented in my book that to
review an unjust decision is not an abuse
of the inherent jurisdiction of the court to
review its own decision. The Chief Justice
continues:
2/4
“… where there is a clear infringement of
statutory law. In this respect, a clear
example would be where the court has
mistakenly applied a repealed law. But,
where it is a matter of interpretation or
application of the law, it is in my view
not a suitable case for review. The
judgment of this court in Adorna
Properties Sdn Bhd v Kobchai Sosothikul
[2005] 1 AMR 501 does throw some light in
this respect.” (I have supplied the
emphasis)
At pages xlii, xliii of the book, I said:
This is a shocking thing to say. What if the
statute is plain enough – where the
language is so clear that even a child
could understand it – what is there for the
judge to interpret (“interpret” means
“explain the meaning of”) in such a case?
For instance, there is Article 72(1) of the
Federal Constitution where it says:
“72(1) The validity of any proceedings in
the Legislative Assembly of any State shall
not be questioned in any court.”
Those words mean what they say. Yet we
have encountered judges of the Federal
Court who have refused to apply this
constitutional provision as it stands under
the guise of interpretation – “the court
was the best place to seek interpretation
of the Constitution”, said a Minister.
In What Next in the Law, Lord Denning
said, p 319:
“Parliament is supreme. Every law
enacted by Parliament must be obeyed to
the letter. No matter how unreasonable or
unjust it may be, nevertheless, the judges
have no option. They must apply the
statute as it stands.”
Lord Denning also said at p 380:
“May not the judges themselves
sometimes abuse or misuse their power?
It is their duty to administer and apply
the law of the land. If they should divert
it or depart from it – and do so knowingly
– they themselves would be guilty of a
misuse of power.”
Righting a Wrong - NH Chan
So then how could the Chief Justice say
“where it is a matter of interpretation or
application of the law, it is in my view
not a suitable case for a review”? What is
most shocking is that the Chief Justice
approved the unjust decision of PS Gill FCJ
in Adorna Properties Sdn Bhd v Kobchai
Sosothikul [2005] I AMR 501 when the
words in s 340 of the National Land Code
are so clear and unambiguous that even a
child can understand it. Yet the judge
refused to apply the law as it stands by
deciding that it was not a suitable case for
review. This is what PS Gill FCJ said, at p
507:
“If the application of r 137 is made
liberally the likely consequence would be
chaos to our system of judicial hierarchy.
There would then be nothing to prevent
any aggrieved litigant from challenging
any decision on the ground of “injustice”
vide r 137.”
So that we have judges in the Federal
Court, even the then Chief Justice
himself, who hold the view that if justice
is not administered according to law, that
is, if the judge did not apply the statute
law as it stands, it is not a suitable case
for review. Injustice is also not a ground.
Zaki Tun Azmi PCA (as he then was, he is
now the Chief Justice) gave a similar
concurring judgment.
So there is no hope for the estate of Mrs
Boonyanit, she has died. The highest court
has even confirmed the perverse judgment
of the unjust judges.
So there you have it, Chief Justice Zaki
Azmi has confirmed the unjust decisions of
two Federal Courts against poor Mrs
Boonyanit. Although today Zaki Azmi, the
current Chief Justice, has held that the
decision of former Chief Justice Eusoff
Chin in Adorna Properties v Boonsom
Boonyanit was blatantly wrong,
nevertheless, he has confirmed that it is
still not a suitable case for review.
Injustice is still not a ground for review by
the Federal Court of its own judgment
3/4
even though the injustice was the result of
an injustice brought about by a judge in
not applying the statute as it stands.
Now that Chief Justice Zaki Azmi has
taken the right step to do the right thing,
the task is now upon him to put right the
injustice done to the late Mrs Boonyanit
and to her estate. It is an onerous duty to
right a wrong. He will be judged by what
he would do next. Almost everyone knows
how to judge a judge today. So be warned!
And lastly what about James Foong FCJ, is
he entirely blameless? He was one of the
five judges who gave the unanimous
decision of Jamaluddin & Ors v Sivakumar
in the Federal Court. To refresh your
memory, I refer to the story in the New
Straits Times of Friday, April 10, 2009:
“PUTRAJAYA: The Federal Court has
declared that three assemblymen who quit
their parties are still members of the
Perak state legislature. This follows an
unanimous ruling by a five-men bench
yesterday which ruled that “The Election
Commission is the rightful entity to
establish if there was a casual vacancy in
the Perak state legislature,” said Federal
Court judge Tan Sri Alauddin Mohd Sherff.
Sitting with him were Datuk Ariffin
Zakaria, Datuk Nik Hashim Nik Abdul
Rahman, Datuk Seri S Augustine Paul and
Datuk James Foong.
I posted an article on the Internet where I
wrote:
“What do you think of the quality of these
judges of the highest court in the country?
You must think that after all the rigmarole
and after all the effort in writing this 20
page judgment, they could have done
better. But no, they still missed the point
altogether. All of us ordinary folk knew the
Righting a Wrong - NH Chan
answer. But not those five judges.
Of course, the point is Article 33(1) of the
Perak Constitution that says that when a
question arises whether a person is
disqualified from being a member of the
Assembly, the decision (meaning “the
vote”) of the Assembly is final. It is
neither the Speaker nor the Election
Commissioner who determines if a person
is disqualified from being a member of the
assembly.
I then went on to say:
“If a person resigns his membership of the
Legislative Assembly, he shall be
disqualified from being a member of the
Assembly for five years from the date of
his resignation: see Article 31(5).”
Article 35 only says that a member can
resign simply by writing to the Speaker.
So that if any question arises as to the
resignation of the three turncoat
assemblymen – a person who resigns his
membership of the assembly is
disqualified for five years from being a
member of the legislative assembly – the
decision of the assembly by a vote being
taken on their disqualification shall be
final. It is only after a member of the
assembly has been disqualified for
membership of the legislative assembly
that a vacancy of the member’s seat in
the assembly arises. It is only then that a
casual vacancy arises.
Must James Foong FCJ redeem himself for
the wrong he did in Jamaluddin v
Sivakumar. In that case he failed to do his
duty as a judge by not applying the law as
it stands. He had lent his name to a
perverse decision by agreeing to it.*
This article is the personal opinion of the writer
or publication. The Malaysian Insider does not
endorse the view unless specified.
4/4