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Monday, February 23, 2009

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 out from what we, the 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 was as follows. When we were told that Justice Augustine Paul was sitting, we filed 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 think. He said that at the outset. The motion than was called and he excused himself. The 2 remaining Judges decided to continue. Imtiaz pointed out that under the Court of Judicature Act, the Federal Court must have 3 Judges. Justice Nik Hashim invoked section 78 which says 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 argument and dismissed the recusal. 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 in the merit of the review. It has been heard and is pending decision. It is therefore sub-judice.

However, the conduct of my learned friend, the Senior DPP, moved me to post this. He made a preliminary objection. Not on any substantive ground. But some grounds which, to me are totally personal. He branded our application for review as an attempt to “judge shopping”; driven by malice; is contemptuous and an abuse of the process of 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 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”. Sometime we impress a point of law to the Judge and tells 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’s 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 invalidly convened with only 2 Judges. That is based on our reading of the various provisions of the Court 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. And if we are, the Federal Court today would say so. And they would say so after hearing both parties. But it is within our right to file the application in order that the issue may be ventilated to the fullest. It was not vexatious. Indeed the Federal Court today heard us and the Senior DPP fully. 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 two 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 up 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 as well. Luckily Imtiaz was the lead 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 reasonable doubt, a burden of proof used in Criminal charges. They should not therefore, under any circumstances, be leveled against Counsel at a drop of a hat! It brings greatly adverse connotations about the Counsel in question and we should all be aware of that.

We are men and women of law. And we should at all time behave as such. And being men and women of law, we should know that etiquette and decorum are what which separate us, the learned people of the law, from the street orators.


animah said...

Art, as I've said before, I am proud of you and Imtiaz. And thank you for the reminder for the rest of our profession.

"We are men and women of law. And we should at all time behave as such. And being men and women of law, we should know that etiquette and decorum are what which separate us, the learned people of the law, from the street orators."

Your last paragraph is very inspiring for me. May I put it up on my wall so I see it each time I'm about to lose my cool.

walski69 said...

If I may, here's some unsolicited insight from a law layperson:

Sometimes, when faced with the prospect of protecting a position that is legally (and some might argue morally, in addition) untenable, such malicious accusations are thrown in as a last ditch kinda thing. Because there is no other way to object. Legally, or morally.

That said, kudos to you and Malik... You two are examples that the law profession still has individuals of high professional ethics, courage, and most importantly, sound moral standing.

It would be my distinct honor to one day be able to shake your hand, and tell you that in person.

LAT, Ipoh. said...

Why Umno has to go so far in the foreign land to seek legal guidance from an English Queen's Counsel ? Because the best "Malaysia King Counsel-Malik & The Art" has been engaged by RPK.

We are really proud to be part of the legal fraternity of this land all because of you guys, our learned people of the law !

Ben said...

It is my pleasure to note the legal fraternity (with the exception of a few) is able and willing to uphold justice. I, too was enraged at what the DPP did and I was a street orator once upon a time. My comments should be, "A pox o' your throat, you bawling, blasphemous, incharitable dog!" But because I am about to meet my Lord, I shall repeat it only silently in my silent corner, as a gentleman would as he rage uncontrollably but in silence. Adieu to you and please take good care of Monsignor RPK, the light which keeps burning for Malaysia.

Anonymous said...

frankly what do you expect from the AG office. Recently, a
minister's brother went scot free on a serious drug charge coz the judge found the prosecution to be derelict in his line of duty. this aint the first and last case. you expect the AG office just like the Razak case? Let me put it this way, the AG office is in the dogs. They will win this case, not of their capabilities, but because of the political pressure.

Anonymous said...


should read..you expect the AG office to decide not to appeal just like the Razak case?

asiseesit said...

cold hard facts can never be toppled. they will rip thru all lies.

emotional outburst only bring out the worst and subject oneself to more doubts.

SV said...

You wonder why the DPP had to search in a sewer to find an objection?

You must remember that the clients represented by the DPP now reside in the sewer. They have run out of legitimate options. Dirty tricks are the order of the day.

We should no longer be surprised. Instead, we should be prepared.

Pahlawan Volunteers said...

Thanks Art.
We have added a link to your article at http://pahlawanvolunteers.wordpress.com/2009/02/24/thank-you-judges-for-a-fair-rpk-hearing/

delcapo said...

Art... well done & keep it up, man!!

Anonymous said...

Mr. Art,

Had you been looking into our school national debate team? Most of the time, they will start with rude sentences, accusing the opponent of intention to mislead and CORRUPT the hall. It COULD be that this prosecutor is the product of our national school. ;)