A Question of Etiquette

I was in the Federal Court this morning with Malik Imtiaz for the hearing of Raja Petra’s application to review four decisions of the Federal Court last week. The review application stemmed from what we, Counsel for Raja Petra, deemed as the “coram failure” of the Federal Court which sat to hear 4 motions filed by us last week.

Briefly what happened last week is as follows.

When we were told that Justice Augustine Paul was sitting, we filed a recusal application. When the appeal was called, Justice Paul, correctly in our view, said that he should not hear the recusal application as he had wanted everything that needed to be said be said without fear. He had also expressed that he wanted justice to not only be done but also be seen to be done. That was gracious of him, I thought. He said that at the outset.

The motion then was called and he excused himself. The 2 remaining Judges decided to continue. Imtiaz pointed out that under the Courts of Judicature Act, the Federal Court must have 3 Judges. Justice Nik Hashim invoked section 78 which states that, if a Judge is unable to continue hearing a matter, the other 2 may continue. And so they continued.

We told the remaining Judges that our stand is that the sitting is unconstitutional. The Court then heard arguments and dismissed the recusal application. 3 other motions were also dismissed later when Justice Paul rejoined the coram. Against that we filed a review, which came up for hearing today.

The purpose of this post is not to delve into the merits of the review. It has been heard and is pending a decision. It is therefore sub-judice.

However, the conduct of my learned friend, the Senior DPP, moved me to post this. He raised a preliminary objection. Not on any substantive ground. But on grounds which, to me, are totally personal.

He branded our application for review as an attempt to “Judge shop”, “driven by malice”, “contemptuous”, and an “abuse of the process of the Court”. I could live with the last ground – but the first three made me absolutely livid. I sat there shaking my head in utter disbelief and anger.

I notice nowadays that Counsel just love the phrase mala fide. Never mind them not really understanding the phrase. Another phrase which many Counsel love nowadays is “misleading the Court”. Sometimes we impress a point of law to the Judge and tell the Judge what a case may mean. The opposite Counsel then has a different view. That would be alright. All he needs to say then is that “I beg to differ from my learned friend on his reading of the case.” But no. Nowadays many Counsel would say, “He is misleading the Court!” Good God! What is happening to our profession?

Back to the Raja Petra case today. Why must the Senior DPP say that? How can we be branded as “malicious”? How can we be accused of “Judge shopping” and “contemptuous”? We took a stand. Our stand was that the last Federal Court sitting was invalid as it was convened with only 2 Judges. That is based on our reading of the various provisions of the Courts of Judicature Act. That is our considered opinion and we filed an application for review based on our considered view as such. It is a position of law which we took. We could be wrong. If we are, the Federal Court today would say so and they would say so after hearing both parties. But it is within our rights to file the application in order that the issue may be ventilated in full. It was not vexatious. Indeed the Federal Court today heard us and the Senior DPP in full. Where is the malice? Or abuse? Or contempt? Or the Judge shopping?

We are doing our very best for our client. A client who is going to lose his personal liberty and freedom for 2 years. All without due process.

It saddens me that nowadays many lawyers are not beyond leveling serious charges against their opponents without any basis whatsoever. Just 2 months ago I was accused of Judge shopping in chambers. It riled me so much that I shouted at my opponent in front of the bemused Judge. I then pointed my finger at my opponent and told him off despite the learned Judge’s timely intervention. I was so angry, I admit, I lost my cool. And just now I almost lost my cool too. Luckily, Imtiaz was the leading Counsel. He did well. He maintained his cool and answered the Senior DPP’s so-called preliminary objection without being emotional.

I think lawyers should not make serious allegations of wrongdoing against their opposite numbers without really good basis. Malice, Judge shopping, misleading the Court and contempt arising from serious misdeeds are, even in civil cases, subject to proof beyond a reasonable doubt, a burden used in criminal cases. They should not therefore, under any circumstances, be leveled against Counsel at a drop of a hat! It brings great adverse connotations about the Counsel in question and we should all be aware of that.

We are men and women of law. We should at all times behave as such.

And being men and women of law, we should know that etiquette and decorum are that which separates us, the learned people of the law, from the street orators.


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Posted on 23 February 2009. You can follow any responses to this entry through the RSS 2.0.

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3 Responses to A Question of Etiquette

  1. Gopal Raj Kumar

    Ther terms 'misleading the court' and 'malice' are well defined in the legal nonmenclature. There is no need to be offended at all. It is not personal.

    If the relevant provisions of the Act provide that in the absence of a quorum of 3 then 2 may continue to sit and hear the matter then it is appropriate that they be allowed to do so especially if you move to have one of the 3 disqualified or recused. It is your motion.

    If you insisit that 3 must be present and the requirements of the quorum take precedence over the hearing of the matter, then you invite it upon yourself to bring the other judge in. It becomes a matter that may be challenged later.

    The term "Judge shopping" is not new or novel either and because the syntax off the legal profession is limited it is not difficult for it to be cliched very quickly either.

    What is perhaps not explained is the term 'abuse of process'. This varies from jurisdiction to jurisdiction and if not statutorily defined it is certainly so by case law.

    What is not discussed here is whether or not you raised the issues as to why Augustine Paul J should have recused himself or be disqualified from hearing the matter by submitting the evidence on which your request or application was based.

    Interesting

  2. Art, mah man, spot on and timely. If the standards at the Bar are declining then the AG's chambers is at its nadir. If AG himself used a doctored photo without even verifying it to argue his case at the ICJ, and if we go back to his Anwar days, he was even accused in a statutory declaration of manufacturing evidence, what can you expect from his subordinates? And if you look at the amount of high profile criminal cases they lose, you wonder how on earth they evaluate the evidence. So making malicious accusations in submissions without a shred of evidence to prove it. That's par for the course!

  3. Yvonne Young

    From your posting, you didn't seem like a person who has just lost his cool. At least you neither give us the name of the Counsel [though it is easy for us to find out] nor call him names.

    Keep your cool. This way, you will heap burning coals on your enemy's head.