Friday, August 13, 2010

Malaysian courts continue to deter people from claiming rights/justice through the courts

Well, again we have it - the Malaysian courts is again penalizing the litigant by the imposition of high costs, and this time it is RM20,000. In dismissing just a leave application to appeal to the Federal Court filed by former  Internal Security Act(ISA) detainee Abdul Malek Hussein. Remember that the High Court ruled in Malek's favour and awarded him RM2.5 million, and then the Court of Appeal overturned that decision and ordered Malek pay RM50,000 in cost. 
 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
In a unanimous decision, the apex court today dismissed a leave application by former Internal Security Act detainee Abdul Malek Hussein, following a rare award of RM2.5 million by the High Court over unlawful detention....To make matters worse for Abdul Malek (right), Alaudin ordered him to pay costs of RM20,000 to the respondents. - Malaysiakini, 12/8/2010, Ex-ISA detainee loses RM2.5mil award, ordered to pay RM20,000
Recall also the case when 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'... Remember, here also "...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"...."

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
Recently, I was also sitting in court when the High Court ordered a worker pay cost of RM4,000. This worker, after being terminated claimed wrongful dismissal. Unhappy with the decision of the Industrial Court that went against him, he exercised his right and brought the matter to the High Court. RM4,000 may be pittance for the Judge and the rich - but for a poor worker, it may be equivalent to about 5 months salary. Let's not forget that the worker would have already had to pay legal fees to his lawyers at the Industrial Court (and the High Court). 
The imposition of these high costs will surely act as a deterrent to the majority of Malaysians - and, somehow that is what is happening in the Malaysian courts. Access to justice by way of legal action today is only something that the rich and very rich can afford. 

The other message being communicated, especially after Zaki Azmi (former UMNO lawyer) took the helm of the Judiciary is that the court will penalize whoever who challenges the government of Malaysia - and this penalty will come in the form of high costs.. - see earlier posts Fight Corruption in Courts - Get rid of corrupt Judges and court staff...and Zaki Azmi

Well, that is also a very good way of ensuring that 'back-logs' are a thing of the past, for I am sure that many will not even take matters to court anymore. Time to start looking for alternatives, and these were the very 'alternatives' that we wanted to avoid when the institution of the judiciary, the third arm of government especially in a democracy, was put in place. Access to the courts must be easy and affordable - and when it is matters of human rights or public interest (or actions taken against the government), there must never be an order as to cost - and even if there is, it must be minimal and token, i.e. never more than RM500-00.

There is no cost awarded for Industrial Court matters, and similarly when a labour matter reaches the High Court or above, there should also be no orders as to cost. The worker just will not be able to continue to battle against the employer, for cost is something that the worker really cannot afford to pay. Remember, Industrial Court (or Labour Court) matters can reach the High Court, Court of Appeal also on the application of the employer who loses at the Labour Courts (or Industrial Courts).
It is good to note that the Malaysian Bar had already said something about this 'cost' weapon being used against litigants...after Malek lost at the Court of Appeal
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...???)
We really have to challenge this disturbing trend in Malaysian courts, which has the effect of deterring  victims of injustice and human rights from taking matters to court. Already, many are  worried about the corruption that exist in the judiciary/courts, the growing belief that they will not get justice in the Malaysian courts, and now the possibility of having to pay exorbitant sums of money as costs. 
Sometimes, magistrates and judges (and the rich) really do not understand the economic reality of Malaysians. Even having to pay RM500 for bail or cost is sometimes very difficult for many. Many just survive month after month with what they earn with nothing much to spare. And, those of us who do have pensions are even more worried about how we will survive in our old age...
The Human Resources Ministry's study of 1.3 million Malaysian workers has found that a shocking 34 percent earn below the poverty line of RM720 monthly. Malaysiakini, 5/8/2010, Study: 34% of workers earning below poverty line
RM70,000 - Can Malek even afford to pay it? I believe that on his own, he may not be able to do so...but others will certainly come to his assistance. Or maybe, he should protest this unjust absurd penalizing cost? May go to jail instead...The Ghandian approach? Maybe, we all need to protest this disturbing trend in our Malaysian courts...which would shun many from coming to Malaysian courts for justice...

In a unanimous decision, the apex court today dismissed a leave application by former Internal Security Act detainee Abdul Malek Hussein, following a rare award of RM2.5 million by the High Court over unlawful detention.

President of the Court of Appeal Alaudin Md Sheriff said the three questions posed to the Federal Court for the leave application did not fall within the purview of Section 96 of the Courts of Judicature Act.

"Hence this application is dismissed," Alaudin said in leading a three-man bench.

The other judges were Federal Court justices Hashim Yusof and Mohd Ghazali Mohd Yusoff.

With today's decision, the former ISA detainee has lost the last avenue to seek legal recourse for his 57 days detention without trial in 1998, where he was also assaulted.

mafrel pc on sarawak election 030506 malik hussein talkingTo make matters worse for Abdul Malek (right), Alaudin ordered him to pay costs of RM20,000 to the respondents.

This was despite a passionate plea by his counsel Sulaiman Abdullah that the court not impose costs as ISA cases were public interests cases, thus imposition of costs would deter anyone from appealing.
Furthermore, the senior counsel said this was the month of Ramadan and in line with its spirit, the court should be compassionate,

However Alaudin would have none of that and imposed the costs sought by senior Federal Counsel Amarjeet Singh.

Decision overturned

On March 25, the Court of Appeal overturned the High Court's decision in granting the rare award to Abdul Malek when it ruled the detention was unlawful. Not only that, it also rejected allegations of torture while in custody.

It is extremely rare for the Court of Appeal and Federal Court to disturb the findings of fact by the High Court, which had heard evidence from the witnesses first hand. 

However, as many may know, in human rights cases and the Perak constitutional matter in determining the rightful menteri besar, they had disturbed such findings.

Sulaiman had posed three questions of law to be considered by the court to grant leave as he felt the appellate court had erred in arriving to overturn the decision.
  • Whether in relation to the arrest and or detention under the ISA, the Kim Teck Soo or the Mohd Ezam Md Noor appeal should be followed is with respect to the interpretation of Articles 5, 8, 149 and 151.
  • Should the court when applying principles in the Dalip Bhagwan Singh case where there is a conflict of opinion between two Federal Court authorities, also take into account other factors
i.whether the judgment was unanimous or a majority
ii.number of judges in the quorum
iii.the later decision.

(This follows the conflicting judgments in the Kim Teck Soo and the Mohd Ezam cases on ISA detention, where both are said to have arrived and made about the same time.)
  • whether the circumstances of the case in the appellate court was justified in departing from the rule that an appellate court does not interfere with findings of facts by the trial judge.
sulaiman abdullah nizar vs zambry case 210509Sulaiman (right), who was assisted by lawyers Edmund Bon and Sivarasa Rasiah, said there were no grounds stated in Abdul Malek's arrest under the ISA, as when he was detained the police failed to state their reasons.

"This is in violation of the rights guarded under the federal constitution," he said, adding that Abdul Malek was also denied access to counsel during detention.

Meanwhile Amarjeet, who was assisted by Iznan Ishak, said in his submission that denial of access does not render the detention unlawful.

He also submitted that the questions posed did not fall within provisions of the Court of Judicature Act.

'Torture will never be forgotten'

Abdul Malek, who is now a parliamentary affairs coordinator for the opposition leader, said he was naturally upset over this dubious decision.

He said despite the apex court being the highest court in the country, it is not the ultimate court of judgment.

Abdul Malek said he cannot forget the torture he had undergone, and had hoped to find legal recourse through the courts.

In 2007, then Kuala Lumpur High Court judge Mohd Hishamudin Mohd Yunus, in a landmark decision ruled that Abdul Malek's detention during the Reformasi demonstrations in 1998, were made in bad faith under Article 5 of the federal constitution.

In ruling the arrest unlawful and affirming there indeed was assault while in custody, Hishamudin, who is now a Court of Appeal judge, also said the nature of Abdul Malek's interrogation was clearly for a political purpose and had nothing to do with genuine concern for national security.

Abdul Malek was arrested under the ISA on the night of Sept 25, 1998, after addressing a demonstration earlier that day in Masjid Negara following the sacking and arrest of Anwar Ibrahim, who was then deputy prime minister.

He was detained for 57 days, and was later released without being charged.

NONEAbdul Malek filed his suit civil suit in March 1999, naming special branch officer Borhan Daud, the then inspector-general of police Abdul Rahim Noor (right), and the government as respondents.

Stripped naked

During the High Court trial, the plaintiff testified he was stripped naked in an air-conditioned room, blindfolded during interrogation, and physically assaulted up to 60 times, beaten until he was unconscious, forced to drink urine and subjected to sexual abuse.

He also told the court he saw Rahim punching him in his chin in the interrogation room when his blindfold accidentally dropped.

Justice Hishamudin also ruled the assault by Rahim did indeed take place as there was no denial and also there was no report lodged against Abdul Malek for falsifying his report.- Malaysiakini, 12/8/2010, Ex-ISA detainee loses RM2.5mil award, ordered to pay RM20,000

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