Monday, May 24, 2010

Sivakumar - pay RM20,000 - Courts are becoming inaccessible to the poor and small companies

Now, Sivakumar to pay cost of RM20,000....

Of late the courts have been ordering costs of RM50,000...RM30,000...and this is a lot of money, and it will definitely make the courts inaccessible to the poor...and the middle class. When it comes to cost, a nominal cost of RM500 is best...and when it is a matter against the government or a government agency, then it must that there is no order as to cost....When there is a matter of public interest, again there must be no order as to cost.

Even, when it comes to ordinary disputes - the order as to cost must not exceed RM5,000. Why? We want people to take their disputes to court...and not resort to 'self-help' and other means of resolving disputes. 
Courts must also be accessible to the not so rich is sad when large cost awards kills the capacity of a person to even appeal to higher courts, i.e. exercising a right guaranteed in law. Person/small company against a big company/person/bank, etc...and he loses at the lower court...and the court decides that he/she has to pay RM50,000...RM100,000....or RM250,000 in cost....and this kind of exorbitant sum will effectively not just deny the person the right to appeal the decision...but will also 'destroy' the poor person/company financially. Money does not grow on trees...and court decision of these sort only closes the door for the poorer ones to get justice from the courts.

Paying legal fees is already a strain on the poor...and, the question that we must ask is whether we want persons to go to court for justice? The recent court orders as to cost is exorbitant.... and, I am sure that many persons, whose rights are violated, will be just too fearful to go to the courts for justice...why? They just cannot afford to pay the costs that the court is ordering them to pay....

The Federal Court has today struck out former Perak speaker V Sivakumar's notice of motion to set aside an earlier judgment made on April 9 last year.

The ousted speaker had argued that the earlier ruling by the Federal Court was made without jurisdiction and had sought to nullify its decision.

perak speaker v sivakumar 270309The April 9 ruling denied Sivakumar (left) the right to declare the state seats of three defected Pakatan Perak assemblypersons vacant and hence call for fresh elections.

Today's panel of judges also affirmed the earlier decision that it was the Election Commission who had the sole right to declare seats vacant.

During the proceedings, the panel allowed counsel Mohd Hafarizam Harun to raise a preliminary objection on behalf of his clients, the three defected assemblypersons.

Federal Court judge Justice Zulkefli Ahmad Makinuddin in his decision laid three grounds in allowing the preliminary objection.

He said, firstly, that the respondent had failed to set out the provision in law where the application was made.

"Furthermore, the jurisdiction issue raised had been dealt with by the previous panel, which had deliberated and decided on the issue."

"Also the other panel had made a judicial finding in court, and hence this is an abuse of the court process," said Zulkefli.

Zulkefli said the decision was unanimous and asked Sivakumar to pay costs of RM10,000 to be shared among the three assemblypersons, and another RM10,000 to the Election Commission. Sivakumar, was present in court.

What today's decision apparently signifies is that Perak constitutional issues can be directly brought up to the Federal Court, after an application has been made by the High Court.

However if one were to remember ousted Menteri Besar Mohammad Nizar Jamaluddin's application, which also involves constitutional matters, was done procedurally from the Kuala Lumpur High Court, Court of Appeal and the Federal Court.

Judges refused to recuse

Earlier on, three of the judges hearing the case - Zulkefli Ahmad Makinuddin, Mohd Raus Sharif and Abdull Hamid Embong - had refused to recuse themselves.
Sivakumar's lawyer had applied for the recusal on the grounds that it was necessary to avoid the perception of any element of bias or danger of bias.

zulkefli ahmad makinudinZulkefli (left) promptly dismissed the application.

Chan Kok Keong for Sivakumar argued that Mohd Raus had made a finding of fact at the Court of Appeal on May 22 last year, which had ruled that Zambry Abdul Kadir is the rightful Perak menteri besar.

Zulkefli and Embong had been involved in a similar decision on Feb 9, 2010.

On April 9 last year, the Federal Court ruled that the speaker did not have the right to declare the state seats held by three BN-friendly assemblypersons vacant, stating that the Election Commission is the rightful body.

The verdict in effect allowed the BN to continue running Perak after its controversial takeover from the Pakatan Rakyat in February last year.

Preliminary objection

However, Hafarizam (below) made the preliminary objection in that in Sivakumar's application, it was not stated whether this application was made via a review or appeal.

NONEHe also raised the issue of res judicata (a matter already judged) in that as the matter of jurisdiction had been raised before in the April 9 verdict, where it had been argued extensively by counsel Sulaiman Abdullah.

"Sulaiman, for Sivakumar, had already made a preliminary objection then over the issue of jurisdiction and it had already been decided. This panel cannot at the same time decide to set aside a matter which had already been decided previously," he said, adding the application was also filed out of time.

Chan however submitted that in matters raised on jurisdiction, it can be heard by another panel as it had the powers to correct, something which was wrong in the interests of justice.

He said cases originating from the state concerning constitution matters should go through the normal way of it being heard at the High Court, Court of Appeal and then the Federal Court.

"Article 63 of the Perak constitution is not Federal law as it is state law. The Federal Court could not assume the position of interpreting constitutional matters directly when the case is brought up from the High Court," he said.

The crux of Sivakumar's application is that Article 63 of Perak Constitution, is by definition not federal law. Hence, the apex court had misinterpreted the Federal Constitution, it had therefore unconstitutionally assumed jurisdiction to hear and make the April 9 decision, as the case directly came from the Ipoh High Court.

chin peng origin controversy 030807 chan kok keongAt times, when Chan (right) wanted to submit he was stopped by the judges hearing the application.

Final nail

Hafarizam on commenting today's decision said this would be the "final nail in the coffin" of the Pakatan Rakyat's application.

"I hope the parties respect today's decision. The matter as to who has the legitimate government has been decided. Let us not challenge this. Let the Perak administration move on," he said.
"In the spirit of 1Malaysia, let us move on with our lives."

However, Hafarizam said if there was a challenge to this decision, they would meet their challenge head on. - Malaysiakini, 24/5/2010,
Ex-Perak speaker's application dismissed
See earlier posts:-

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

: "Pay RM50,000" - Are the Malaysian Courts sending a message to us? Do not challenge the government...???

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