‘…we will accept the decision by the Federal Court…’

Our Prime Minister, Datuk Seri Najib Tun Razak (also one of ‘those’ who insist on putting daddy’s title behind their name because having his own title in the front is not enough) was reported in the New Straits Times yesterday as saying the following about the on going Zambry v Nizar case, ‘We hope there is a finality to this process. I understand they will very likely appeal to the Federal Court. It is their right to do that and we will accept the decision by the Federal Court which is the highest court.’

He was talking trash some more but most of it is not worth commenting on except that bit about consulting Lord Lester QC, but I will get to that in due course. Let’s consider that quote above first and allow me to explain why it is so wrong.

Firstly, there is finality to the process after going through all the avenues of appeal. If the Federal Court does not allow leave for Nizar to appeal to them that ends the matter right there. So a finality of process is wasteful to hope for Prime Minister. It’s provided for in the law and will come. We the rakyat know all about wasteful hopes.

Secondly, it is good to see that even if the Prime Minister doesn’t know when finality is achieved in the court process, he does realize that the Federal Court is the highest court in this country. That also is provided for in the law and the Prime Minister in announcing it in that manner, betrays that that statement is more to remind himself than telling us anything meaningful. But then we the rakyat also know that to expect meaningful from you is to waste our hopes.

Thirdly, a Federal Court decision is not for you to choose whether to accept or not, Prime Minister. You have no choice. Whether you are Prime Minister of Malaysia or KuntaKinte, the law is clear and set out in the Supreme Court decision of Wee Choo Keong v MBf Holdings Berhad [1993] 2 MLJ 217 where a unanimous bench comprising Tun Hamid Omar LP, Eusoffe Chin SCJ and Mohamed Dzaidin Abdullah SCJ delivered the following judgment:

It is established law that a person against whom an order of Court has been issued is duty bound to obey that order until it is set aside. It is not open for him to decide for himself whether the order was wrongly issued and therefore does not require obedience. His duty is one of obedience until such time as the order may be set aside or varied. Any person who fails to obey an order of Court runs the risk of being held in contempt with all its attendant consequences.

If one wonders why the Prime Minister seems rather clueless about the law, it is thoroughly understandable. He is advised by the Attorney General of Malaysia who thinks it is time well spent arguing bail applications in the Criminal Sessions Court (and losing them – just because you enjoy it doesn’t mean you are good at it) or in the International Court of Justice (with a faked photo – what’s a small thing like a photo after a semen-stained mattress? Hey wait, is there a modus operandi going on here?). I would like to know why he is not spending his time pouring himself into many more pressing and urgent issues with regards to the law. For example, where’s that Data Protection Act? Why hasn’t the procedural rules of court been revised and improved? Why isn’t he improving the quality of the legislation so we don’t get half baked implementation of legislation like the Arbitration Act 2005 which repealed the old one (the 1952 Act) but made no corresponding procedural provisions by amending the Rules of the High Court 1980 to make the 2005 Act effective? Or why not focus on improving the quality of what passes off for prosecutions these days?

An Attorney General carries out a public service (see Article 145 of the Federal Constitution) and so is in a position of public trust. He is therefore accountable to all of us on what he does during his tenure, not just the chap who signed his letter of appointment because that chap is also there because of us. If the Attorney General does not tell us what he gets up to during his tenure, how do we know whether he is doing work in the public interest and not attending to private political interests?

People in positions of vast power are the last ones we should trust since Lord Acton’s timeless advise that ‘Power corrupts; absolute power corrupts absolutely’ holds true. And the Attorney General has absolute power over all prosecutions for offences in this country (except the Syariah courts, the native courts and a court martial which are limited to the military). So one can imagine the amount of corrupting influences in such an office.

Now back to the Prime Minister’s other comment-worthy quote. The news report reads as follows:

Najib said that the international legal experts such as the Queen’s Counsel Lord Anthony Lester of Herne Hill concurred with the Court of Appeal’s decision.

“We sought his legal opinion. If a Queen’s Counsel like Lord Lester is of the opinion that we are on the right track with the Court of Appeal’s decision, then we should not misunderstand or give a negative perception towards the judiciary.’

“We should not have the attitude that if the decision sides us, then the judiciary is free. But if it takes a decision which is the same as the Government had wished for, then it is accused of following the Government’s lead. This is not fair.”

This statement is so wrong it is perverse on many counts. So let’s not waste any time and get right to listing them out:

Firstly, who are these esteemed panel of international legal experts? I only heard him mention one.

Secondly, who gives a damn what a Queen’s Counsel says? That is just one view out of many QCs over there in England. And if the Opposition bothered to waste their money paying another QC to say they opposite they will certainly be able to find one. QCs are just that – if you pay them their fee, they will argue whatever silly point you want with great ability and drama. So don’t fling their full title around like there is any authority to it! There’s none.

Thirdly, why did they have to go get a QCs opinion? You mean Malaysian lawyers are not good enough to interpret their own constitution? Anyway, I’m not surprised, the elite of Barisan Nasional folk spend most of their money overseas anyway. So much for supporting the local industry. If the Prime Minister values the English opinion so much, bring back the Privy Council I say. At least then we can be assured of quality on the bench from the highest appellate court and reasoned written judgments.

Fourthly, I am nonplussed that the Prime Minister benchmarks appellate court decisions against opinions that his political party hires QCs to come up with. How can you say that the Court of Appeal is on the right track because it accords with an opinion you bought in England? From a legal and common sense perspective, that is just demented. And how dare you equate a Court of Appeal decision with a QC’s opinion! In Malaysia, the latter is worthless in the face of the former.

Fifthly, what utter nonsense the Prime Minister is saying in saying that ‘we should not misunderstand, or give a negative perception towards the judiciary’! Why not? There has been no resolution from the Syed Idid’s anonymous poison pen letters, Muhammad Kamil’s complaint that the former Chief Justice (CJ) called him up before his decision on an election petition, the Ayer Molek case, the New Zealand photographs between Eusoffe Chin and VK Lingam, or the famous VK Lingam videotape, or that Razak Baginda somehow got off scott free and the two cops who had no motive to do the deed are convicted of murder, or that the present CJ was UMNO’s top lawyer before being virtually elevated to the highest position in the Federal Court and that UMNO is a party of which he was deputy President when he was appointed?

Which part did we, the rakyat, have to play in this ‘negative perception’? At which point of the Judiciary’s illustrious recent history did they break free from the shackles and firm grip of the Executive i.e. the government? When Tun Zaki Azmi was appointed CJ? When the Royal Commission your predecessor set up found as a fact that the former CJ, Tun Ahmad Fairuz, was on the other end of the line with VK Lingam? When Tun Dzaiddin was around after he ruined Article 5(1) of the Federal Constitution by interpreting the word ‘life’ so narrowly in the Federal Court decision of Pihak Berkuasa Negeri Sabah v Sugumar Balakrishnan & Another Appeal [2002] 4 CLJ 105?

And so that last part about ‘We should not have the attitude that if the decision sides us…’ can only be charitably described as bullshit as helpfully defined by Harry Frankfurt, a professor emeritus of philosophy at Princeton University. It is no secret that when all things are equal, the judiciary will come down on the government’s side instead of the rakyat. This was happening back in Tun Suffian’s time as well. See my discussion of the decision of Ooi Ah Phua v Officer in Charge of Criminal Investigation, Kedah/Perlis [1975] 2 MLJ 198. And it is still happening now. Of course, there are some brave, clever, honest and good judges who buck the trend but they are in a minority.

I would be willing to accept (just like the Prime Minister ‘accepts’ a judgment of the Federal Court) such glaring errors and bullshit from a common counter clerk in government but not from the Prime Minister of my country. I hope the Prime Miniser forgives me and anyone else who demands a smidgen more of him. We’re so used to mediocrity, we would be grateful for a bit of class, sense and honesty.

In that vein, I sincerely hope the Prime Minister gets himself a better legal adviser and a better media officer, because between the three of them, I find it hard to tell who is not doing their job diligently.

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Fahri Azzat practices the dark arts of the law. Although he enjoys writing and reading, he doesn't enjoy writing his own little biographies of himself. Like this one. He wished somebody else would do it for him. He has little taste in writing about himself in third person. He feels weird doing it. But the part he finds most tedious is having to pad up the lack of his accomplishments, or share some interesting facts about his rather uneventful life, as if there were some who found that oh-so-interesting; as if he were some famous person, like Michael Jackson. When he writes these biographies, the thought, 'Wei, Jangan Perasaan- ah!' lights up in his head. So he usually just lists what he got involved with, positions he held and blah, blah. But this time. Right here. Right this very moment. Uhuh. This one. This one right here. He's finally telling it like it is.

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10 Responses to ‘…we will accept the decision by the Federal Court…’

  1. Loyar Bagus

    Fahri,

    That was just my black humour showing.

    However, I will point this out – that phrase is not uncommon; as a matter of fact, it is used by people in many countries including democracies. Punch it into Google – the exact phrase has been used by elected leaders and politicians in the USA (on various occasions), South Africa, India, Romania, Nigeria, amongst others. This is not an attempt to "talk trash" or remind anyone – it is just a statement that the Government will not seek to act against or somehow counter the effect of the Court decision.

    In short, it is a gesture that the Government is subject to the law, nothing more. In our case, it is particularly relevant, since the judicial powers of Malaysian Courts are vested in them by the Parliament.

  2. Loyar Bagus,

    Thank you for your comment but we must disagree.

    What I intended to demonstrate was that the PM said nothing of any value whatsoever, legally, politically, etc. and in fact got it wrong. There is no need to say 'we will abide/accept/obey/whatever the court decision'. He might as well be talking about why it is warm in Malaysia.

    My other point is – for someone in his position of such great authority – the least you can do is make sure you don't speak nonsense and get your law/facts right. Our politicians speak anywhere. If you happen to catch them taking a dump and ask them for a comment they will oblige. They must and should be more responsible with their comments and not give them anywhere they are asked especially when they have not thoroughly considered the issue. And a lot of them speak without the benefit of the law or facts and become wrong. The danger is that people listen and follow them and policy springs forth from these remarks.

  3. Pingback: Lord Lester QC: Najib talking nonsense « Hornbill Unleashed

  4. It wasn't Lord Lester. It was Lord Manchester (United). LOL!!

    Fahri, all esteemed right thinking readers of this article are in agreement with you, I am sure.

  5. Loyar Bagus

    Fahri, I think you are reading too much into the "we will abide by the decision of the Federal Court." I think what Datuk Seri Najib is saying is that he will not clap Nizar in irons and leave him to rot in a cold, damp dungeon.

    As for Lord Lester, any lawyer with any litigation experience knows that you can pay an expert (especially an advocate) to say what you want him to say. No disrespect intended, but Lord Lester was never a Law Lord nor did he ever sit as a judge in the UK. As such, his opinion, is merely that.

  6. ‘…we will accept the decision by the Federal Court…’ Najib

    Translated: : We will accept the decision of the Lingam Judges!"

  7. Perakian

    Ha ha ha…I like this one, " (an) Attorney General of Malaysia who thinks it is time well spent arguing bail applications in the Criminal Sessions Court".

    You must add lah, Fahri, that the bail application concerned a case of a so called illegal assembly in KT. This bloke has to fly all the way to KT just to argue a bail application case, when it could be done by a young and fresh DPP. But if Umno assembled without police permit, nothing is illegal in his views.

    Further, you must add that in all the Perak's cases, he intervenes purportedly for public interest when in actual fact he acted more like Zambery's leading counsel. What a waste of public funds. I am surprised the Nizar's team didn't point it out to the Crts.

    As intervenor, and as AG, don't you think that he should help the court to decide the case by submitting on the correct interpretation of Art.43(4) Fed Consti which is in pari materia with all State's constitutions notably Perak's Art 16(6).

    He is wasting government and public funds being allowed to intervene. High Crt should have told the Zamberi team that they could appoint Gani Patail as their lead counsel and the government should be reimbursed for the public monies wasted by him defending Zamberi.

    Everytime Gani Patail submits in court, the Zamberi team of lawyers just adopted his submission. It was sarcastically mentioned by Aziz J in his written judgement.

    Gani Patail should ceased from getting involved in the Perak's case and should now concentrate his effort on how to manufacture another 'mattress' evidences in the coming Anwar 2nd Sodomy trial. That is what he is good at. Mind you being a senior DPP then, he was in Bukit Aman directing and getting involved in investigations including fabricating evidences and finally being one of the Chamber's prosecuting team. This guy has no integrity and legal etiquette; an interested party should never be part of the prosecuting team.

  8. PeoplePower

    Well Said!

  9. Must be the contagion effect of the recent past HP6 regime.