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Tuesday, June 09, 2009

The RPK case - a significant victory

Civil societies advocates today gained a significant victory in the Federal Court in the case involving the appeal by the Home Minister against the release of Raja Petra Kamaruddin from his ISA detention.

Briefly, the Federal Court today declared that the last sitting of the Federal Court which heard and dismissed four applications (motions) by RPK was not properly convened. Consequently, the Federal Court today set aside all orders made on the said motions.

In order to appreciate the significance of today's order, allow me to give a chronology of events.


RPK was released by Justice Syed Helmy, a Judge of the High Court at Shah Alam. The Home Minister appealed against this release to the Federal Court.

Day 1 at the Federal Court

In the morning of the hearing day, we were informed that the Coram which will hear the appeal consisted of Justices Nik Hashim; Zulkifli Makinuddin and Augustine Paul. RPK advised us that he remember writing articles about Justice Augustine Paul a number of times during the Anwar Ibrahim trial. Some negative remarks were made about him by RPK in his writings.

It was felt that an application for Justice Paul to recuse himself from hearing the appeal should be made. When the matter was called for hearing, Imtiaz asked for a one day postponement in order to prepare and file the recusal application. The prosecution team objected vehemently. The Court initially refused to grant a postponement, even though we made it clear that we would file the recusal application the next day. We were instead asked to make the application there and then, orally.

Imtiaz told the Court that that was impossible to do because we needed to look at evidence and adduce the same through affidavits. The Court asked us why we had not come prepared with the application to recuse and told us to proceed. Imtiaz told the Court that we had had no notice that Justice Paul was going to sit! We were nevertheless told to proceed.

At that point of time, I stood up and walked to the public gallery - where RPK was sitting - to get his instructions. He whispered to me his instruction. His instruction was clear. We were asked not to participate in the appeal. In short, we were supposed to walk out.

I asked him to repeat his instruction, just to be very clear about it. I also told him that if we did that, the appeal would go on without his case being heard, just so he knew the risk of walking out. He repeated his instruction.

I walked back and told Imtiaz of RPK's instruction. Just then and at that precise moment, the Court relented and gave us a postponement.

The next day, we filed the application for recusal. We also wrote a letter to the Court expressing our view that perhaps, in the interest of justice, Justice Paul should not even sit to hear the recusal application.

Day 2 at the Federal Court - hearing of the motion for recusal

On this day, there were 4 motions for hearing. First was the motion for recusal which we just filed. I will touch on the other 3 later in this post.

When the day started, Justice Paul, at the outset, said that he had formed the opinion that in the interest of justice, "everything which need to be said should be said" in the hearing of the recusal motion. He then said under the circumstances, he would not sit to hear the recusal application.

After that, the motion for recusal was called up for hearing. Justice Paul then excused himself and left. Justice Nik Hashim, who was presiding then told us to proceed.

At this point of time, Imtiaz pointed out that the law, namely, section 74 of the Court of Judicature Act, requires a panel of 3 Judges or such greater uneven number of Judges. As it was, there were only 2 Judges (as Justice Paul had excused himself).

The 2 sitting Judges pointed out that section 78 of the same Act allows any remaining Judges, not less than 2 in number, to continue hearing a matter if any Judge in the panel is unable, through illness or any other cause, to hear the matter. They were then of the opinion that section 78 allows them to continue with the case.

Imtiaz pointed out that section 78 did not apply because that section talks about a case which had started before, say, 3 Judges, and in the middle of it one Judge became unable, through illness or any other cause, to continue. In such a case the 2 remaining Judge may continue. However, in our case, the matter had not yet started or commenced.

The Court disagreed and ordered us to proceed. Imtiaz told the Court that the decision to continue with only 2 Judges would found a ground for us to apply for a review later. At this point, Justice Nik Hashim told us that "you can do whatever you like" and asked us to proceed.

The motion for recusal was thereafter heard and dismissed. Justice Nik Hashim then called on Justice Paul to "take his rightful place."

Day 2 - hearing of the other 3 motions

There were another 3 motions to dispose off. One was an application for a panel of 5 or 7 Judges. After Justice Paul had rejoined the panel, this motion was quickly heard and dismissed.

The next 2 motions were applications to adduce further evidence. There were 2 pieces of evidence which were sought to be adduced by RPK, namely;

  • the evidence given by Supt Gan in RPK's case that the police had never investigated the truthfulness or otherwise of RPK's article on the Altantuya murder. This, to our mind is relevant because that article formed one of the basis for RPK's ISA detention;
  • the evidence showing that after RPK was released from his detention by Justice Syed Helmy, the security of the nation had not been threatened in any way.

On the first one, I was asked by Justice Paul what the relevance of that evidence was. I answered that it goes to showing mala fide or bad faith. Justice Paul asked me "what bad faith" and told me to "be careful" of what I submit. I told him that bad faith went to the crux of the matter and therefore it was relevant. Since the police had not even investigated the truthfulness or otherwise of the article, it was clear that his detention based on the same article was made in bad faith, I submitted.

On the second one, Justice Nik Hashim asked me the relevance of the evidence. I told him that the Minister had signed a 2 year detention order. RPK was therefore deemed to be a threat to national security every single day for the next 2 years. The fact that after his release, national security was not in any way threatened would be relevant. ISA is after all not punitive in nature but preventive. Justice Nik Hashim disagreed with me and asked me who said that. I respectfully pointed out that the whole ISA regime is designed to prevent a threat to national security and not to punish people.

Both applications (or motions) were then dismissed.

The appeal proper was then fixed to be heard on a different day not long after.

Day 3 - review application

We quickly prepared and filed an application to the Federal Court to review all the above decisions. The basis for doing so is that the Federal Court was not properly convened as only 2 Judges were sitting. Because of that, all decisions made in dismissing the aforesaid 4 motions were not valid and ought to be set aside.

Ordinarily, the decision by the Federal Court is final. There is no more avenue for appeal. However, in some exceptional cases, the Federal Court may review any decision made by it. One of the established ground for review is that the Federal Court had no jurisdiction or power to make the order under review. To our mind, the previous sitting of the Federal Court clearly had no jurisdiction nor the power to make those orders.

The review application was heard before a powerful panel consisting of the President of the Court of Appeal (number 2 Judge in ranking, after the Chief Justice), Justice Allauddin Mohd Shariff; the Chief Judge of Malaya, Justice Ariffin Zakaria and the Chief Judge of Borneo, Justice Richard Malunjum.

The hearing went well, as opposed to the highly volatile nature of the hearing before the previous panel. The prosecution team however made it a point to say that we were:

  • trying to shop for Judges (to choose Judges)
  • driven by malice
  • guilty of abuse of the Court process
  • guilty of contempt

To say that I was livid is an understatement. I had written about this episode here. Imtiaz handled those allegations in his usual cool, calm and collected way. I, on the other hand, was preparing to hurl the various bundle of documents at the prosecution team!

The Decision Today

Today, the Federal Court delivered a unanimous written decision on our application for review. The decision was written by Justice Richard Malunjum. It was read out by the Court Registrar in open Court.

Justice Richard Malunjum found that the reason proffered by the previous panel of 2 Judges to "continue" with the hearing of the motion despite Justice Augustine Paul having excused himself and left was "untenable". That is because the case had not commenced or started and as such section 78 of the Court of Judicature Act did not apply.

As such, there was, in Justice Richard Malunjum's decision, an "inherent failure" of the Coram in the last Federal Court sitting.

His Lordship therefore exercised the Court's power to review the orders made by the last panel. He found that the dismissal of the recusal application was not in order and he set aside the order for dismissal.

Because the recusal application was improperly dismissed, it follows that the hearing of the 3 motions which took place after the dismissal of the recusal application, was also tainted or in his word, "contaminated." The orders dismissing the 3 motions are therefore also set aside.

What it Means

RPK is not yet out of the wood. What today's order means is that all parties have to start afresh. All motions filed by RPK are now kept alive and will have to be reheard by the Federal Court. A fresh hearing date will now be fixed for all the motions and the appeal by the Home Minister. We will be duly informed of the date as and when it is so fixed.

Personally though, I feel vindicated. At least it is now proven that I was not driven by malice. I was not contemptuous. I didn't indulge in Judge shopping. And no, I didn't abuse the Court's process.


Tiger said...

Hard to believe the Judge said, "you can do whatever you like".
That's already NOT an impartial comment!
Btw, Art, haven't seen MIS' articles for weeks. He busy too?

Anonymous said...


k89 said...

Bravo. Art - congratulations to you and your team.

In any other system, this congratulations would not have been necessary.

It seems to me that the two Federal Court judges who rejected the motion to recuse Justice Augustine did not understand a simple court procedure that is written in plain English. More importantly, they should have understood the purpose of having a proper Coram. This is such an elementary issue that it does not require all the highbrow lawyers to explain. Even a Form VI student with an average IQ would have told you that. Any judge who values the demonstrated impartiality of the court would have voluntarily asked for a new hearing with three judges.

Is this an attitude problem (I do not care, you or anybody cannot do anything to me, I am the god) OR a competence problem. Or is it a mix of both - an arrogant attitude to camouflage ineptitude and incompetence.

If they could not comprehend this simple issue, how can they be trusted with complicated constitutional and other such issues?

In this layman citizen's point of view, this simple case alone should be sufficient to call for the two judges to be dismissed after a fair hearing. Who will do that?

Anonymous said...

Could it be a sugar coated trap to lure RPK in coming back?

Anyway, felt the same relief knowing there are judges whom care abt justice is being served.

Going forward, what is the odd the 3 hush-hush judges who sat earlier are in the next coming 'panel' of judges sitting?

let's say 5 bench judges with 3 whom had earlier made their decision and recinded by their peers?

....just wondering!

Thumbs up to you Art for the victory!

Singam said...

To RPK's team, well done.

There never was any question about the validity of the application, but there was always the question of whether the Court would be allowed to act fairly and according to the law. Thankfully there are still judges who remain above the corruption that passes for a government.

The question that remains is, does RPK have to present himself if he wishes to pursue the case or can it be carried out in absentia?

He puts himself in deadly peril if he attempts to show his face anywhere within the jurisdiction of the PRDM.

Old Fart said...

I am puzzled here. We are talking about very learned guys here. Nop kopio lawyer wannabes like me who cannot read and connect two sentences properly. And yet Justice Nik Hashim told you guys that "you can do whatever you like."

Now he surely knew and understood the relevant Section 78 you referred him to. How do you then explain his dogged attitude in dismissing your arguments?

When I put myself in that position of Justice Nik Hasim, I can only think of one circumstance when I will willfully decide contrary to what is written when I hold the power and the authority to interpret it anyway I want. Either I am compromised or I have been paid off handsomely. So what was it? AFter all the language of the Acts are pretty plain and simple for my 15 year old to understand anyway. Why did he conduct himself like the idiot that he is now made out to be with this review? I don't wish to hold this justice in contempt, but being the layman that I am that is what I see. Ask Bart Simpson and he will tell you so too.

donplaypuks® said...

They blow hot and they blow cold!

Are these judges plain incompetent or are they playing a game to trap the likes of RPK and the Pakatan Govt in Perak?

Antares said...

Thank goodness I have the luxury of going by the SMELL of things rather than rely on physical "evidence"! Nik Hashim; Zulkifli Makinuddin and Augustine Paul are evidently NOT FIT TO BE ANYTHING OTHER THAN BN JUDGES. The judicial game is fraught when we are literally saddled with an utterly corrupt AG handpicked by the nefarious Dr M AND a Chief Justice with hardly any judicial experience and whose chief qualification appears to be the fact that he served Umno faithfully for years. In the face of all this, it is indeed MIRACULOUS that there are still a handful of decent, fragrant-smelling judges who know the law and serve it fearlessly.

Art, once again, I fully appreciate your being part of these tumultuous upheavals in our political landscape. Lawyers like you and the others on the brave team that got RPK released on November 7th, 2008, make the law smell good to MY nose. Thanks a million for this valuable personal update!

Anonymous said...


When Judges decisions are proven wrong and overturned, can the wronged party take action against them?

Are they ever punished for these wrongs. What can the laymen do? Sue them?

Shamsul Yunos said...

It's amusing and its shocking to hear your commenters say that if an appeal is successful then the judge at a lower court is either incompetent or guilty of wrongdoing.

An appeal is just that, perhaps some things were overlooked perhaps some points of law are in contention and could have been decided either way

what is equally shocking is that the blog owner does not see it fit to inform his readers that an appeal is just that and if it is successful it does not mean that the lower court judge has done anything wrong.

Nanda said...

Anon 1639H and Anon 1811H,

I don't think there's any requirement for RPK to be present.

It's the government that is appealing against the decision of the High Court that hear RPK's habeas corpus application and ordered his immediate release.

Balasi said...

well said ART,

YM RPK has the best defence team around.

Nanda said...

k89 and Old Fart, sir,

What went on on that day, in my humble opinion was that the judges fumbled, with all due respect. It appears that they planned the details up to citing Section 78 of the Court of Judicature Act.

When Justice Augustine Paul wanted to recuse himself, he started with the often qouted aphorism 'Not only must justice be done, it must also be seen to be done'. After saying "everything which need to be said should be said" in the hearing of the recusal motion, he proceeded to excuse himself and stood up.

All these while, the motion for recusal hasn't been called up by the court officer yet, and hence it hasn't begun.

Justice Nik Hashim then can be seen stopping Justice Augustine Paul from leaving (if I recall correctly, he held Justice Augustine Paul's hand) and then instructed the court officer to call up the motion. After the motion had been called up, Justice Nik Hashim asked Justice Augustine Paul to repeat and Justice Augustine Paul again mentioned that he will not be sitting in and then excused himself again.

Even for a lay person like me, sitting in the public gallery, something seemed amiss.

Then it made sense when Justice Nik Hashim used Section 78 of the Court of Judicature Act in response to Mr Malik Imtiaz who raised the issue of violation of Section 74 of the same act.

They had anticipated this all along but somehow, Justice Augustine Paul jumped the gun and made his intention not to sit to hear the motion for recusal known even before the recusal was called up and the event that followed thereafter i.e Justice Nik Hashim stopping Justice Augustine Paul etc, in my opinion were attempts to salvage their plan and still use Section 78 in defence of their actions.

So, its not the question of not understanding simple court procedure in my humble opinion.

art harun said...

Dear En Shamsul,

"what is equally shocking is that the blog owner does not see it fit to inform his readers that an appeal is just that and if it is successful it does not mean that the lower court judge has done anything wrong"

Waaaah, is your second name Mr QuickDraw McGraw?

Please don't make that kind of conclusion En Shamsul. I posted my article late afternoon yesterday. After that I was working. Then I went home. I did not have the opportunity to read all the comments till now (9:34am Wednesday). If you haven't known, I don't live in my blog. I have my family and a real life to live and take care of. Now that I have read the comments, I will of course address them. Thank you for reminding me.

art harun said...


As usual thank you for visiting and commenting.

Nanda, you have a helluva memory. Frankly, I don't really remember the holding hand part but the rest is just about what had happened that day.

The 1st panel has obviously made an error in their interpretation and the applicability of sec 78. The 2nd panel yesterday had laid down the correct interpretation and declared that the 1st panel of 2 Judges were not properly convened. They also said that the reason used by the 1st panel to apply sec 78 was "untenable".

I will take both the decisions as they are and on the face of them. I won't read anything into them because as a lawyer I go by evidence and not assumption.

Yesterday's judgment, to me, was a genuine exercise of judicial discretion. It was backed by precedents and sound reasoning. In addition, Justice Richard had even taken the time to write quite a lengthy judgment. I am grateful.

As for the 1st panel, they had their reasons for doing what they did and for interpreting sec 78 as they did. It was clear, to my mind, that they had wanted to proceed with the case and dispose it quickly. Other than that, I don't have anything to say.

Judges of course are human beings and being so they are capable of making errors. That is why we have appeal courts which can then correct the error.

The question is what happens when the highest court itself make errors? There is no more appeal court after the federal court. In our case, we were lucky because we manage to invoke the review procedure because the issue in our case goes to the question of jurisdiction and power. Had it been just a normal question of law, we would have had nowhere to go but to accept whatever decision made by the Fed Court.

Now, in RPK's case, as it is, he is a free man. He has been released by the High Court. The Home Minister appeals. This appeal is yet to be heard by the Federal Court. Our 4 motions are also still alive, after yesterday's decision. These also will have to be re-heard.

Anonymous said...



So is it safe to walk on the streets again?


Shamsul Yunos said...

I didn't realise you don't moderate your comments,
I thought you moderated them before they appear
you get one day grace period next time ,-)

Nanda said...

Thanks Sir, but my memory is not half as good as yours.

Yep, I agree fully with you on the reasons why the first panel did what they did and chose to interpret Section 78 as they did and I believe that the first panel erred on their interpretations of Section 78 and am glad that the second panel interpretated it correctly.

I guess, perhaps sitting in the public gallery as a lay person I read more into the actions of the first panel and couldn't help feeling that something is not right and the actions of the first panel were not fair at all, but you can't really blame me because as they often say, 'Not only must justice be done, it must also be seen to be done'.


Nanda said...

art harun said:
'The question is what happens when the highest court itself make errors? There is no more appeal court after the federal court. In our case, we were lucky because we manage to invoke the review procedure because the issue in our case goes to the question of jurisdiction and power. Had it been just a normal question of law, we would have had nowhere to go but to accept whatever decision made by the Fed Court.'

Nanda says:
The point that you made during the Perak fiasco in regards to reintroducing the right to appeal to the Privy Council comes to mind immediately. That point looks very valid sir.

LAT said...

Syabas ! Imtiaz & The Art Legal Team. You guys have resuscitated the dying hope we have towards the Judiciary. Justice is for the Righteous ones. Thanks.

art harun said...

En Shamsul,

I am most obliged. :)

CK Peng said...

Hi Art,

Congrat on the victory! I know still too early to celebrate as need to go back to square one. But this should be One good judgement from the Federal Court after so many of their Maggie Mee style judgement (without written reason) in the Perak fisco!

In the Perak Case Juutice Alauddin and Arifin also sits in the Famous Five quick style Judgement tahn irk retired Judge NH Chan. Only different is this time Chief Judge of Borneo, Justice Richard Malunjum sits. So I might be wrong but it it not hard to see what a big different if a good Judge is sitting.

Will the Federal Court keep this same high standard with the appeal by Nizar? The COA not even given their written judgement! How many will be hearing the case. If it goes to the same 1st panel like in the RPK case. 5 Mins is all they need to annouce the judgement and they will not write you the reason!
Let's hope this will not happen.

To Art, Imtiaz and the Team Sybas! To Chief Judge of Borneo, Justice Richard Malunjum. You won my respect!


Anonymous said...

CK Peng

whats there to write when the judgement is made for political reasons. NH Chan has stated that the Constitution is very clear in that the courts have no business in poking their noses into the affairs of the judiciary. And what have the Apex Courts done? Effectively, arrogating power to themselves to intefere in the legislature. and we all know the reason for doing it, dont we?

CK Peng said...

Hi Anonymous 11 June 2009 00:17,

Totally agree with you that they have nothing to write as decision is most likely not theirs but instruction from the top... and sadly not according to law.

So should we just resign to fate and forget about it? I think we should keep asking this question to the said Judges. They can't have their happy life, we need to inform all the public that look these judges are not qualify at all to sit there! Their don't even write their judgement!

CK Peng