Friday, May 21, 2010

Pay RM30,000 in cost because you took the government to court? What is the message that the courts are giving the Malaysian public?

The Malaysian courts, since the rise of Zaki Azmi as the head of the judiciary, is becoming more and more inaccessible to the poor...and 'poorer' Malaysians. [Zaki Azmi - a former UMNO lawyer, Early September 2007 - Lawyer to Federal Court Judge, December 2007 - Appointed the President of the Court of Appeal (No.2 in the Malaysian Judiciary), October 2008 - Appointed Head of the Malaysian Judiciary] - see earlier posts Fight Corruption in Courts - Get rid of corrupt Judges and court staff...and Zaki Azmi

Who can afford paying costs of RM50,000....and RM30,000, if and when they lose in court? Already, they would have had to pay their lawyers...and now Malaysian courts at the highest level is setting a very bad precedent...maybe, it is a step being taken to 'clear the backlog' - deter ordinary people from taking up matters to the court.

In cases against the government and/or government agencies taken up by persons claiming their human rights, surely cost payable, in the event they lose, should be really nominal - not more than RM500-00....or just no order as to cost. These are also cases of public interest - and helps clarify the rights of persons with regard the government...police, MACC, etc... [Things are also changing in Malaysia as it seems that 'no one can win against the government'...]
Kajang municipal councillor Tan Boon Wah against the Malaysian Anti-Corruption Body - the question was whether the MACC can question a witness 'around the clock'...for 24 hours. The  Lock-up Rules, which protect suspects from further interrogation between 6.30pm and 6.30am...but the Court of Appeal (and the Federal Court) seems to say that witnesses can be investigated round the clock...Matter of public interest and human rights? I think so...and hence 'penalizing' Tan by having him pay RM30,000 is wrong wrong. [Councillors get about RM1,000 per month - 2 1/2 years allowance, mmm ]
They also unanimously awarded the cost incurred in the Court of Appeal and Federal Court, a total of RM30,000, to the MACC.- Malaysiakini, 20/5/2010, Federal Court: MACC can interrogate witnesses after office hours
Abdul Malek Hussein was a ISA detainee [detention without trial]. He came to court alleging that his detention was unlawful, and that he had been tortured. The High Court was with him and awarded RM2.5 million in damages. But, the Court of Appeal overturned the High Court decision, and asked Malek to pay RM50,000 in cost..[ see earlier post:- As expected, Court of Appeal overturned RM2.5 million judgment favouring Malek Hussein....]
 Following the decision, Abdul Malek is not entitled to get any monetary award but was instead ordered by the appellate court to pay RM50,000 in costs..- Malaysiakini, 25/3/2010, Ex-ISA detainee loses RM2.5 mil court award
The Malaysian Bar did come out after the Malek's decision and say:- "...We are surprised that the Court of Appeal appeared to overturn findings of fact made by the trial judge, who saw the witnesses and heard their live testimony.  Furthermore, the order of costs of RM50,000, especially against a victim of the ISA, is exorbitant, and punitive in nature..." (see earlier post: "Pay RM50,000" - Are the Malaysian Courts sending a message to us? Do not challenge the government...???)

The Federal Court today declared that witnesses can be interrogated by the Malaysian Anti-Corruption Commission (MACC) beyond office hours.

The three judges, Abdull Hamid Embong, Mohd Ghazali Mohd Yusoff and Heliliah Mohd Yusof, came up with the unanimous decision after spending about 35 minutes in the chambers.

However, they did not give the grounds of their judgement, saying that they will deliver it "later".

They also unanimously awarded the cost incurred in the Court of Appeal and Federal Court, a total of RM30,000, to the MACC.

Senior federal counsel for MACC Amarjeet Singh, in his submission, maintained that the Court of Appeal's judgement, which had said that restricting the time of examination to normal office hours would create absurdity, and would not promote the purpose of the MACC Act.

"The importance of prompt and unimpeded investigation would promote the purpose of the Act.

"The apex court has always recognized the importance of investigation as not only as being in the interest of the public, but also in the interest of justice even when the fundamental rights of an individual is at issue," he told the court in Putrajaya this morning.

He also said that the provision in the act, sections 30(1)(a) and 30(3)(a) confers a power on the officer investigating an offence to require the attendance of any person to assist in investigations.

"This provision is in line with promoting the purpose of preventing corruption by ensuring that the time of investigation is not restricted and takes place as and when the occasion requires," he said.

"Time to carry out investigative functions ,therefore, cannot beinterpreted as being restricted to normal working hours."

'Suspects have more rights than witnesses'
However, Tan's lawyer, Karpal Singh, told the court that had the legislature intended for the term "day-to-day" when providing for interrogation of witnesses to mean continuously or without interruption from one 24 -hour day to another, it is only proper to look for some other meaning of the word or phrase.

The veteran lawyer also cited the Lock-up Rules, which protect suspects from further interrogation between 6.30pm and 6.30am.

"Witnesses should be entitled to more protection than suspects. It is the reliable evidence of witnesses which ultimately succeed in the conviction of suspects.

"If witnesses were questioned round the clock, their statements should then be inadmissible," he said.
When met outside the court, Karpal expressed disappointment.

"Now suspects have more rights than witnesses," he said, adding that there will be repercussions as witnesses will be afraid to come forward.

End of the road

He also said that it is already the end of the road for Tan as there will be no more room for review of the Federal Court decision.

Tan, had challenged the MACC's right to interrogate witnesses late at night, during which time the commission has been accused of torturing them.

Tan himself was questioned overnight at the Selangor MACC headquarters in Shah Alam on July 15 last year, together with state exco Ean Yong Hian Wah's aide Teoh Beng Hock. Teoh was subsequently found dead the next morning.

The High Court had ruled in favour of Tan, allowing the judicial review, saying that the MACC is not empowered to investigate a witness "round the clock".
But the decision was overturned by the Court of Appeal on Dec 17, which held that restricting the interrogation of witnesses to working hours would create an absurdity and would not promote the purpose of the MACC Act.

The judges also decided to award costs to the MACC in the civil suit filed by Kajang municipal councillor Tan Boon Wah (photo, left).

The judges also did not give their grounds, saying that they will on do so "in due course"..- Malaysiakini, 20/5/2010, Federal Court: MACC can interrogate witnesses after office hours

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