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.

To 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 (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.

Abdul 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

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 persons...it 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.

The 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 (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.

He 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.

At 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...???

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 ...so 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