What I Said About Election Judges Applies Mutatis Mutandis

NH Chan defends his statements against the Election Judges in his previous article (which can be viewed here).

In The Sun, 24th of December 2013, the news item read:

“Federal Court allows petition against Ahmad Zahid’s election victory

KUALA LUMPUR: The Federal Court yesterday sent back the Bagan Datoh election to the election court, leaving the fate of its MP, Datuk Seri Ahmad Zahid Hamidi, still undecided.

A five-man bench led by Tan Sri Raus Sharif, in allowing the appeal by two petitioners, said anyone could file a petition:

‘The petitioner does not have to physically file the petition himself,’ he said of the unanimous ruling.

Madhi Hasan and Azmi Sulaiman filed two petitions on grounds that Ahmad Zaidi, who is home minister, had allegedly committed corrupt and illegal practices.

However the merit of the case could not be heard as election judge Datuk Umi Kalthum Abdul Majid dismissed the petition, following a preliminary objection that the petition needs to be filed personally by the petitioner.”

As I need to know more of what was decided by the Federal Court, I asked Edmund Bon by email to enlighten me. He is out of the country at the moment so he referred me to New Sin Yew – both were the counsel (plural, counsel, never counsels) who, together with two others, represented the appellants at the Federal Court. This is what SY New emailed me:

“Dear Judge,

There were two quorums of the Federal Court who heard all the appeals from the Election Court.

In summary, they’ve decided the following in relation to rule 9 and rule 34 of the Election Petition Rules:

1. Under Rule 9 of the EPR, an ‘Advocate’ must be a natural person. A firm of advocates & solicitors is not an ‘advocate’ within the meaning of Rule 9 EPR.

2. Anyone, even a firm of advocates & solicitors, can file the Election Petition as long as the Election Petition is signed by the Petitioner.

3. At the Federal Court stage, the Rules of the Federal Court supersedes the EPR and any advocate & solicitor can represent the petitioner in the Federal Court even if the same advocate and solicitor was not authorised to act for the petitioner in the Election Court.

4. At the Election Court stage, an advocate must be authorised to act for the petitioner by complying with rules 9 and 34 of the EPR before the advocate can appear before the Election Court.

In Bagan Datok, the petition was struck out on the basis that the petition was filed by the advocate instead of being physically filed by the Petitioner himself, even though the advocate had been authorised to act for the Petitioner.

On appeal, the Federal Court overturned the decision based on point 2 above.”

So there you have it, point 2 says that “anyone, even a firm of advocates & solicitors, can file the Election Petition as long as the Election Petition is signed by the Petitioner. ”


Splitting Hairs

However, this Federal Court also held in point 1, “Under Rule 9 of the EPR, an ‘Advocate’ must be a natural person. A firm of advocates & solicitors is not an ‘Advocate’ within the meaning of Rule 9 of the Election Petition Rules.” This is splitting hairs which my dictionary says it means: “to make a fine but needless distinction”. In realty there is no distinction at all. Take, for example, a law firm called “Cheang Lee & Ong, advocates & solicitors”; could anyone, who is not a moron, say the lawyers in the firm are not natural persons? This is a needless distinction because everyone knows that the lawyers in any law firm are “natural persons”. I suppose there are judges in our Federal Court who thought otherwise – were they thinking of monkeys or aliens from outer space? Perhaps our judges have not heard of the Latin phrase de minimis non curat lex (it means, the law does not concern itself with trifles). Every law student knows that, but not so our judges.



The Federal Court had, in fact, upheld all the decisions of the election court, apart from this case and another case in Perak. This means that the Federal Court had agreed with the election judges that rules 9 and 34 of the Election Petition Rules 1954 only permit for a single advocate and solicitor who can be authorised to act for the petitioners. This only shows that the Federal Court is just as ignorant as the election judges on the law; which is section 4 (3) of the Interpretation Acts 1948 and 1967 and it says: “(3) Words and expressions in the singular include the plural, and words and expressions in the plural include the singular”.

As that is the case, then what I have said in A Sense of Injustice about the incompetence of the election judges apply mutatis mutandis (Latin, meaning “the necessary changes having been made”) to the Federal Court judges who had heard the election appeals and had upheld the decisions of the election judges.

The ordinary people of this country must do something about the sorry state of our judiciary with its host of incompetent judges? We cannot and must not allow this state of incompetence among our judges to continue. Any reader of this article and my previous one, “A Sense of Injustice”, knows the law applicable but not so our judges. We must exercise the power of the vote to oust the incumbent government that was responsible for the appointment of such judges who, because they have shown themselves to be incompetent, have made our country the laughing stock in the entire common law world.

It takes only a simple Act of Parliament to rid the country of the incompetent and, therefore, unjust judges. Even the incumbent government could redeem itself by passing a law declaring those judges who had proved themselves to be incompetent, as I have shown in the election petition cases, be removed from office forthwith in ignominy, with all privileges of their office, such as their pension, withdrawn.

At p 134 of my book, How to Judge the Judges, I wrote:

“To all those judges who think they are above the law, I would suggest that they pay careful attention to the warning by Lord Denning MR in Gouriet v Union of Post Office Workers [1977] 1 QB 729 at 761-762:

‘To every subject in this land, no matter how powerful, I would use Thomas Fuller’s words over 300 years ago: “Be you never so high, the law is above you.’ ”

And the law is a simple Act of Parliament which could be the nemesis of the unjust judges.


Featured image by Aliran.com

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Posts by NH Chan

NH Chan, a much respected former Court of Appeal Judge, is a gavel of justice that has no hesitation in pounding on Federal Court judges with wooden desks for heads. Retired from the Judiciary to become the People’s Judge. Wrote the explosive “Judging The Judges”, now in its 2nd edition as “How To Judge The Judges”. Once famously hinted at a possible “case match” between lawyer and judge by remarking that “something is rotten in the state of Denmark” (see Ayer Molek Rubber Company Berhad & Ors v Insas Berhad & Anor [1995] 3 CLJ 359). We need more people like NH Chan. That is why you should buy PASOC and his book.

Posted on 31 December 2013. You can follow any responses to this entry through the RSS 2.0.

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3 Responses to What I Said About Election Judges Applies Mutatis Mutandis

  1. Pepper Lim


  2. Justica

    It has been apparent to the legal fraternity for a couple of decades that many judges of one particular race have been less then competent or conscientious in discharging their duties. Just read their judgements, if written at all, and compare with those of earlier judges. They are largely poorly written and many lack any jurisprudential value. It is a terrible indictment of the state of the judiciary and the deterioration continues. Even the AG who is the Public Prosecutor is tainted. Thanks largely to Dr M and those succeeded him. These so called judges enjoy all the privileges of the office, flattered by those who bow before them and swank around as if they own the whole country. Yet, the rakyat seemed helpless to do anything. Thanks to a corrupt government!

  3. Kim Quek

    I agree completely with NH Chan’s rejection of the court’s unnecessarily restrictive interpretation of the word “advocate”, as justice is equally served whether the petitioner names a single lawyer or a legal firm to represent him in his petition (after all, some legal firm may have only one lawyer). To reject a petition outright simply because the name entered in the petition is that of a legal firm instead of an individual lawyer is outrageous, as the petitioner should at least be given the opportunity to make the change, in the most implausible event that a legal firm is absolutely unacceptable. That both the high court and the federal court held to this narrow and highly unreasonable decision clearly indicates that our judiciary from top to bottom have forsaken justice to play partisan politics. And this tragic situation can only be rectified by a regime change.