An incisive look at the ethical dynamics behind the recent Federal Court decision of Tan Ying Hong v Tan Sian San and Ors.
The duty to do the right thing
What is the duty of a judge? It is to administer justice according to law. It is the simplest duty in the world. Anyone with integrity who is fair-minded can be a judge. This is why I have always tried to impress on my readers that it is so easy to be a judge. The hyperbole of the unjust judges who have been telling us in their unjust decisions that the words in a statute mean whatever they want them to mean, will no longer be tolerated by us common folk. The common people of this country will be able to expose the Humpty Dumpty judges for what they really are. The general public is no longer gullible. Unjust judges can no longer mask their hyperbole judgments with unintelligible garbage. This is possible today because most people now know how to judge the judges.
It is this awareness of the true meaning of justice that the common man can judge the judges. Anyone can be a judge. All that you need to be one is to be fair-minded yourself and to show by your conduct and behaviour in a court of law that you deal out impartial justice – for justice must not only be done, it must be seen to be done. The other attribute of a judge is to administer justice according to law.
Shortly stated, justice means that the judge’s duty is to do the right thing. The right thing to do is to deal out impartial justice. The right thing to do is also to apply the law as it stands. As the late Lord Denning once said in The Discipline of Law (page 8):
One thing you will not be able to avoid – the nervousness before the case starts. Every advocate knows it. … No longer now that I am a Judge. The tension is gone. The anxiety – to do right remains. (emphasis mine)
In the case of Tan Ying Hong v Tan Sian San and Ors, the Federal Court on Thursday, Jan 21, 2010, held that its decision in Adorna Properties Sdn Bhd v Boonsom Boonyanit in 2000 was wrongly decided and therefore not to be followed. By so deciding this Federal Court has done the right thing.
Chief Justice Zaki Azmi said that “he was legally obligated to restate the law since the error committed was so obvious and blatant”.
Comprising the panel of this Federal Court were Chief Justice Zaki Azmi, Alauddin Mohd Sheriff (President Court of Appeal), Arifin Zakaria (Chief Judge Malaya), Zulkefli Ahmad Makinudin and James Foong Cheng Yuen FCJJ. Doing the right thing is the duty of every judge. Here, these judges did the right thing; they applied the statute as it stands.
But do you recognise or remember these judges?
Three of them were among the infamous five who decided Zambry v Sivakumar in the Federal Court. In case you have forgotten who the infamous five were, they were Alauddin Mohd Sheriff PCA, Arifin Zakaria CJM, Nik Hashim Ab. Rahman, Augustine Paul and Zulkefli Ahmad Makinuddin FCJJ. See here for my critique.
So you are now aware that the same three judges were members of the infamous five in Zambry v Sivakumar. These three blatantly refused to apply Article 72(1) of the Federal Constitution as it stands. Until they recant from what they had done ignominiously in Zambry v Sivakumar they will not be forgiven. Their names will remain in infamy until they take steps to redress the wrong that they had done. Remember this: “The evil that men do lives after them.” (Shakespeare, Julius Caesar, Act 3, Scene 2)
And what about Chief Justice Zaki Azmi, is he to remain unscathed?
I shall refer to some excerpts from my book, How to Judge the Judges (2nd ed), so that you can judge the Chief Justice for yourself. See “An Addendum to the Asean Security Paper Mills’ Case” at page xxxix of the book:
If you will recall, see p 181 et seq. when the Federal Court overruled the decision of the Court of Appeal it resulted in the insured plaintiff Asean Security Paper Mills Sdn Bhd obtaining judgment against the insurers on their policy of fire insurance in respect of the goods destroyed in the fire. One of the insurers then applied under rule 137 of the Rules of the Federal Court 1995 for a review. The application for a review was turned down by the Federal Court in Asean Security Paper Mills Sdn Bhd v Mitsui Sumitomo Insurance (Malaysia) Bhd  5 AMR 377 (Abdul Hamid Mohamad CJ, Zaki Azmi PCA and Zulkefli Ahmad Makinuddin FCJ).
As you would probably know the judgment of PS Gill J (as he was then) in the High Court was an unjust decision. An appeal by the insurers to the Court of Appeal was allowed. But the Federal Court reversed the decision of the Court of Appeal – You can read all about it in the book. But what is very disturbing is the reason given by the Federal Court in rejecting the application for a review by the insurance company. This is what Chief Justice Abdul Hamid Mohamad said, page 382 of the law report:
However, I accept that, in very limited and exceptional cases, this court does have the inherent jurisdiction to review its own decision. I must stress again that this jurisdiction is very limited in its scope and must not be abused. I have no difficulty in accepting that inherent jurisdiction may be exercised in the following instances: …
I have commented in my book that to review an unjust decision is not an abuse of the inherent jurisdiction of the court to review its own decision. The Chief Justice continues:
… where there is a clear infringement of statutory law. In this respect, a clear example would be where the court has mistakenly applied a repealed law. But, where it is a matter of interpretation or application of the law, it is in my view not a suitable case for review. The judgment of this court in Adorna Properties Sdn Bhd v Kobchai Sosothikul  1 AMR 501 does throw some light in this respect. (I have supplied the emphasis)
At pages xlii, xliii of the book, I said:
This is a shocking thing to say. What if the statute is plain enough – where the language is so clear that even a child could understand it – what is there for the judge to interpret (“interpret” means “explain the meaning of”) in such a case?
For instance, there is Article 72(1) of the Federal Constitution where it says:
72(1) The validity of any proceedings in the Legislative Assembly of any State shall not be questioned in any court.
Those words mean what they say. Yet we have encountered judges of the Federal Court who have refused to apply this constitutional provision as it stands under the guise of interpretation – “the court was the best place to seek interpretation of the Constitution”, said a Minister.
In What Next in the Law, Lord Denning said, p 319:
Parliament is supreme. Every law enacted by Parliament must be obeyed to the letter. No matter how unreasonable or unjust it may be, nevertheless, the judges have no option. They must apply the statute as it stands.
Lord Denning also said at p 380:
May not the judges themselves sometimes abuse or misuse their power? It is their duty to administer and apply the law of the land. If they should divert it or depart from it – and do so knowingly – they themselves would be guilty of a misuse of power.
So then how could the Chief Justice say “where it is a matter of interpretation or application of the law, it is in my view not a suitable case for a review”? What is most shocking is that the Chief Justice approved the unjust decision of PS Gill FCJ in Adorna Properties Sdn Bhd v Kobchai Sosothikul  I AMR 501 when the words in section 340 of the National Land Code are so clear and unambiguous that even a child can understand it. Yet the judge refused to apply the law as it stands by deciding that it was not a suitable case for review. This is what PS Gill FCJ said, at page 507:
If the application of r 137 is made liberally the likely consequence would be chaos to our system of judicial hierarchy. There would then be nothing to prevent any aggrieved litigant from challenging any decision on the ground of “injustice” vide r 137.
So that we have judges in the Federal Court, even the then Chief Justice himself, who hold the view that if justice is not administered according to law, that is, if the judge did not apply the statute law as it stands, it is not a suitable case for review. Injustice is also not a ground. Zaki Tun Azmi PCA (as he then was, he is now the Chief Justice) gave a similar concurring judgment.
So there is no hope for the estate of Mrs Boonyanit, she has died. The highest court has even confirmed the perverse judgment of the unjust judges.
So there you have it, Chief Justice Zaki Azmi has confirmed the unjust decisions of two Federal Courts against poor Mrs Boonyanit. Although today Zaki Azmi, the current Chief Justice, has held that the decision of former Chief Justice Eusoff Chin in Adorna Properties v Boonsom Boonyanit was blatantly wrong, nevertheless, he has confirmed that it is still not a suitable case for review. Injustice is still not a ground for review by the Federal Court of its own judgment even though the injustice was the result of an injustice brought about by a judge in not applying the statute as it stands.
Now that Chief Justice Zaki Azmi has taken the right step to do the right thing, the task is now upon him to put right the injustice done to the late Mrs Boonyanit and to her estate. It is an onerous duty to right a wrong. He will be judged by what he would do next. Almost everyone knows how to judge a judge today. So be warned!
And lastly what about James Foong FCJ, is he entirely blameless?
He was one of the five judges who gave the unanimous decision of Jamaluddin & Ors v Sivakumar in the Federal Court. To refresh your memory, I refer to the story in the New Straits Times of Friday, April 10, 2009:
PUTRAJAYA: The Federal Court has declared that three assemblymen who quit their parties are still members of the Perak state legislature. This follows an unanimous ruling by a five-men bench yesterday which ruled that “The Election Commission is the rightful entity to establish if there was a casual vacancy in the Perak state legislature,” said Federal Court judge Tan Sri Alauddin Mohd Sherff. Sitting with him were Datuk Ariffin Zakaria, Datuk Nik Hashim Nik Abdul Rahman, Datuk Seri S Augustine Paul and Datuk James Foong.
I posted an article on the Internet where I wrote:
What do you think of the quality of these judges of the highest court in the country? You must think that after all the rigmarole and after all the effort in writing this 20 page judgment, they could have done better. But no, they still missed the point altogether. All of us ordinary folk knew the answer. But not those five judges.
Of course, the point is Article 33(5) of the Perak Constitution that says that when a question arises whether a person is disqualified from being a member of the Assembly, the decision (meaning “the vote”) of the Assembly is final. It is neither the Speaker nor the Election Commissioner who determines if a person is disqualified from being a member of the assembly.
I then went on to say:
If a person resigns his membership of the Legislative Assembly, he shall be disqualified from being a member of the Assembly for five years from the date of his resignation: see Article 31(5).
Article 35 only says that a member can resign simply by writing to the Speaker.
So that if any question arises as to the resignation of the three turncoat assemblymen – a person who resigns his membership of the assembly is disqualified for five years from being a member of the legislative assembly – the decision of the assembly by a vote being taken on their disqualification shall be final. It is only after a member of the assembly has been disqualified for membership of the legislative assembly that a vacancy of the member’s seat in the assembly arises. It is only then that a casual vacancy arises.
Must James Foong FCJ redeem himself for the wrong he did in Jamaluddin & Ors v Sivakumar? In that case he failed to do his duty as a judge by not applying the law as it stands. He had lent his name to a perverse decision by agreeing to it.