Monday, April 27, 2009

Just or jittery judiciary?

In my post Judge going against Constitution of Malaysia? based on a news report by The Malaysian Insider, I had joined highly respected (former) judge Justice NH Chan in lamenting the abysmal English proficiency of one of our judges, …

… in that one esteemed Justice of the High Court couldn’t understand Article 72, Clause (1) of the Federal Constitution clearly, which states: The validity of any proceedings in the Legislative Assembly of any State shall not be questioned in any court.

Justice Chan went on to explain, not that we laypeople couldn’t understand the Article (in English, mind you) but probably more for the esteemed Justice’s benefits, that what the Speaker had done or did in the Assembly, rightly or wrongly, is not to be questioned in any court. Amin!

In other words, should a case come up asking the court to rule on the validity of what the Speaker had done or said in the Assembly, the sitting judge should tell the plaintiffs to poorah.

And if the judge didn’t or doesn’t, guess who should then be poorah-ed?

… because a judge who made or makes a ruling AGAINST Article 72, Clause (1) of the Federal Constitution would be one who had or has gone AGAINST the Constitution of Malaysia …

… which by the way just happens to be the SUPREME LAW of the land.

Justice NH Chan called such a judge a renegade judge!

Now, compare the above with what I am about to write, re an article in The Malaysian Insider titled Conversion case puts govt’s promise to test.

It’s the sad story of a Hindu woman and her estranged husband who converted from Hinduism to Islam. There’s a court case to be heard this week. The Malaysian Insider stated that:

The case of Shamala Sathiyaseelan will be heard by the Court of Appeal tomorrow after she lost in a lower court last year. She had failed in her bid to challenge the conversion of her two young children to Islam by her husband.

(BTW, don’t confuse Shamala’s case for another, a more recent one involving M. Indira Gandhi who has benefitted somewhat from the recent cabinet pronouncement on the faith of children in cases where hubby decides he wants to be Muslim but the mum remains a Hindu)

Lawyer Malik Imtiaz Sarwar is representing Shamala in the syariah court.

You may ask: ‘Huh? Syariah court? Isn’t Shamala a Hindu?'

The strange case (hmmm, maybe not so after all) where Shamala, a non-Muslim with NO legal standing in the syariah court, has been forced to seek redress of her grievances under the jurisdiction of a syariah court is an appalling indictment of the Malaysian civil courts …

… because, as The Malaysian Insider reported:

The civil High Court had earlier refused to rule on the legitimacy of the conversion of her children. The civil courts have consistently refused to accept jurisdiction in cases such as Shamala’s.

Helloooooooo - ain't this quite a difference to one of its judges' bravery in recently bucking the SUPREME LAW of the land?

Coincidentally Imtiaz is Shamala's lawyer. A couple of years back, in my post SUHAKAM Chairman: "Civil Court Judges Lack Balls", Imtiaz complained to the chairman of SUHAKAM, former Attorney-General Abu Talib Othman, about civil courts abdicating their judicial responsibility in such cases where the contesting hubby and wifey, professed different religions, namely Islam and Hinduism.

The following are relevant extracts of my post:

On the timidity of the civil courts in interpreting the constitutional rights of the syariah courts in the Moorthy case [Malaysia’s well-known body snatching scandal where the civil courts failed his Hindu family], ...

... the chairman of SUHAKAM, former Attorney-General Abu Talib Othman, the very man who had drafted the contentious Article 121 (1)(A) in 1988, blamed the civil courts for lacking the balls to interpret the provisions according to the intentions of the proponents (BTW, that’s the Mahathir government with Abu Talib as drafter).

averred that the insertion of Article 121 (1)(A) into the Constitution was never intended to deny or deprive non-Muslims the right to seek justice in a civil court.

In fact he saw the only problem being the judges of the civil courts lacking the courage to act further independently of the Executive (ie. PM & Cabinet), that is, with applying the provisions for non-Muslims with initiative, justice and more guts instead of waiting for a nod of some sort from the Prime Minister.

[Note how M Indira Gandhi has benefitted (at least for a while) from the ‘nod of some sort from the (current) Prime Minister']

Abu Talib even accused the civil court judges of worrying about their promotional prospects as the possible reason for lacking the courage.

He said: “The courts have failed to do so (interpret boldly) for the slightest unreasonable reasons in many cases where Islam is merely seen on the surface.” […]

When human rights lawyer Malik Imtiaz told him that about judges who admit to being Muslims first, Abu Talib advised him to report the matter and if there was evidence, those judges should be removed.

He said: “They are unfit to be judges, then. Judges should remember their constitutional oath to protect and uphold the Federal Constitution as the supreme law of the land.”

Abu Talib said of the Moorthy case, where the widow Kaliammal went to court to stop his Muslim burial, that Article 121 (1)(A) did not take away the rights of non-Muslims. He accused the courts of not interpreting it correctly, and added:

“If the plaintiff [ie. Moorthy’s widow] is not a Muslim, I cannot imagine why the (civil) court can say ‘I don’t have jurisdiction’. If the plaintiff does not profess Islam, there is no reason not to hear the case.”

“The problem here is caused by the court, not by the legislature. Judges are not complying with the constitutional oath they had taken. The courts today are taking the easy way out, either due to incompetence or under threat. Today, our courts are merely courts of statistics not interested in dispensing justice. ...”

Indeed, what a quote that Judges are not complying with the constitutional oath they had taken. The courts today are taking the easy way out, either due to incompetence or under threat. Today, our courts are merely courts of statistics not interested in dispensing justice.

Should Nizar be worried?

(1) Ball in civil courts, but balls were missing?
(2) Article 121(1)(A) - What terrified the Civil Courts!

1 comment:

  1. nizar is doomed.

    there is no courts of justice here anymore. its a KANGAROO COURT.