Court erred in dismissing Anwar's bid for review
comment On Feb 25, 2010 Malaysiakini reports that Anwar Ibrahim failed to convince the Federal Court to review its Jan 29 decision to bar him from obtaining more key evidence from his sodomy trial.
The report quotes the judges saying: "Rule 137 (of the Rules of the Federal Court) does not confer jurisdiction on the Federal Court to review its own decision."
Why not? Why can't the earlier decision of the same Federal Court be reviewed? Rule 137 of the Rules allows it. This is what it says:
The report quotes the judges saying: "Rule 137 (of the Rules of the Federal Court) does not confer jurisdiction on the Federal Court to review its own decision."
Why not? Why can't the earlier decision of the same Federal Court be reviewed? Rule 137 of the Rules allows it. This is what it says:
137. Nothing in these rules shall be deemed to limit or affect the inherent powers of the Court to hear any application or to make any order as may be necessary to prevent injustice or to prevent an abuse of the process of the Court
Aren't the words, "Nothing in these rules shall be deemed to limit or affect the inherent powers of the Court … to prevent injustice or to prevent an abuse of the process of the Court", in Rule 137 clear enough? Those words clearly allow the Federal Court to review its own decision so as "to prevent injustice or to prevent an abuse of the process of the Court".
We, the ordinary citizens of this country, are stunned by the ignorance of our judges of the highest court in the land for saying "Rule 137 (of the Rules of the Federal Court) does not confer jurisdiction on the Federal Court to review its own decisions". What utter nonsense are those ignoramuses talking about?
These inane judges cannot even understand plain English when even a child can understand the plain meaning of ordinary words. Now you can appreciate what I have been saying all the time that the ordinary people are better qualified than most of our judges when it comes to understanding the law. Since the common people are smarter than those judges, they can judge them. They would not be wrong if they think the judges are incompetent.
These three judges also say, "There must be finality. To re-litigate a case which has been heard and finally disposed of is not one of the circumstances as envisaged by Rule 137" (Star Online, Feb 25). No one is asking for the case to be re-litigated. All that the aggrieved party, in this case Anwar, was asking is for the earlier judgment of the Federal Court declared null and void because it was an unjust decision.
We, the ordinary citizens of this country, are stunned by the ignorance of our judges of the highest court in the land for saying "Rule 137 (of the Rules of the Federal Court) does not confer jurisdiction on the Federal Court to review its own decisions". What utter nonsense are those ignoramuses talking about?
These inane judges cannot even understand plain English when even a child can understand the plain meaning of ordinary words. Now you can appreciate what I have been saying all the time that the ordinary people are better qualified than most of our judges when it comes to understanding the law. Since the common people are smarter than those judges, they can judge them. They would not be wrong if they think the judges are incompetent.
These three judges also say, "There must be finality. To re-litigate a case which has been heard and finally disposed of is not one of the circumstances as envisaged by Rule 137" (Star Online, Feb 25). No one is asking for the case to be re-litigated. All that the aggrieved party, in this case Anwar, was asking is for the earlier judgment of the Federal Court declared null and void because it was an unjust decision.
Court empowered to prevent injustice
Unequivocally, the Federal Court has the inherent power to prevent an injustice whenever it had been occasioned by an earlier decision of the same court. This is clearly defined in Rule 137 where it says "Nothing in these rules shall be deemed to limit or affect the inherent powers of the Court … to prevent injustice".
As if this atrocity is not enough, there is yet another horror to come out of those three judges. Only an incompetent lawyer or judge could say something as silly as this, "Even assuming that there is a limited inherent power, the applicant has failed to come within the limited exceptions that have been distilled from earlier decisions of the Federal Court," said Judge Zulkefli Ahmad Makinuddin.
But what "limited exceptions" can there be? The inherent powers of the court to prevent injustice or an abuse of the process of the court have no limitations nor are they affected by exceptions.
The words in Rule 137 are so precise and clear that even a child could understand them. And the Rule says that nothing is to limit or affect "the inherent powers of the [Federal] Court … to make any order as may be necessary to prevent injustice".
Yet those three incompetent judges – perhaps they were clowns as their statements were laughable - still insist that the applicant, namely, Anwar, has failed to come within "the limited exceptions" when nowhere in Rule 137 are such preconditions imposed.
The Rule allows for review by the Federal Court of its own decision if Anwar, the aggrieved party, can show that the earlier decision of the Federal Court was unjustly made against him.
The errant judges do not even know that it is never the duty nor function of a judge to administer injustice
A wrong decision based on an error of law is not the same as an unjust decision. Anwar is applying for a review because the decision of the Federal Court is unjust and not because it is wrong in law.
When it comes to truth and justice, there is never to be any choice at all because falsehood and injustice must never be the alternative. It has to be Hobson's choice. So that for those who do not know right from wrong; who do not know justice from injustice, such lowly individuals should never be allowed to sit on the seat of Justice. They should never be allowed to be judges at all. And yet there are so many of them in the judiciary today ever since the rot begun.
I think I have said enough to prove my point. If our judges say that there are "exceptions that have been distilled from earlier decisions of the Federal Court", then they and those other judges of the Federal Court who have held that there are such exceptions are unfit to sit on the seat of justice as judges.
They are unfit to be judges because they do not know the difference between right and wrong; between justice and injustice and between truth and falsehood. Our country does not need imposters, who pose as judges, to deceive the common people any longer. The common citizenry can now uncover the imposters hiding beneath the mantle of the judicature.
Unequivocally, the Federal Court has the inherent power to prevent an injustice whenever it had been occasioned by an earlier decision of the same court. This is clearly defined in Rule 137 where it says "Nothing in these rules shall be deemed to limit or affect the inherent powers of the Court … to prevent injustice".
As if this atrocity is not enough, there is yet another horror to come out of those three judges. Only an incompetent lawyer or judge could say something as silly as this, "Even assuming that there is a limited inherent power, the applicant has failed to come within the limited exceptions that have been distilled from earlier decisions of the Federal Court," said Judge Zulkefli Ahmad Makinuddin.
But what "limited exceptions" can there be? The inherent powers of the court to prevent injustice or an abuse of the process of the court have no limitations nor are they affected by exceptions.
The words in Rule 137 are so precise and clear that even a child could understand them. And the Rule says that nothing is to limit or affect "the inherent powers of the [Federal] Court … to make any order as may be necessary to prevent injustice".
Yet those three incompetent judges – perhaps they were clowns as their statements were laughable - still insist that the applicant, namely, Anwar, has failed to come within "the limited exceptions" when nowhere in Rule 137 are such preconditions imposed.
The Rule allows for review by the Federal Court of its own decision if Anwar, the aggrieved party, can show that the earlier decision of the Federal Court was unjustly made against him.
The errant judges do not even know that it is never the duty nor function of a judge to administer injustice
A wrong decision based on an error of law is not the same as an unjust decision. Anwar is applying for a review because the decision of the Federal Court is unjust and not because it is wrong in law.
When it comes to truth and justice, there is never to be any choice at all because falsehood and injustice must never be the alternative. It has to be Hobson's choice. So that for those who do not know right from wrong; who do not know justice from injustice, such lowly individuals should never be allowed to sit on the seat of Justice. They should never be allowed to be judges at all. And yet there are so many of them in the judiciary today ever since the rot begun.
I think I have said enough to prove my point. If our judges say that there are "exceptions that have been distilled from earlier decisions of the Federal Court", then they and those other judges of the Federal Court who have held that there are such exceptions are unfit to sit on the seat of justice as judges.
They are unfit to be judges because they do not know the difference between right and wrong; between justice and injustice and between truth and falsehood. Our country does not need imposters, who pose as judges, to deceive the common people any longer. The common citizenry can now uncover the imposters hiding beneath the mantle of the judicature.
Two instances
Having said that, I can now proceed to identify the errant "earlier decisions of the Federal Court" on Rule 137. There are two. The two misguided decisions are Adorna Properties v Kobchai Sosothikul [2006] 1 MLJ 417 and Asean Security Paper Mills Sdn Bhd v Mitsui Sumitomo Insurance (Malaysia) Bhd [2008] 5 AMR 377.
Practicing lawyers will tell you that not too long ago the Federal Court have been exercising their inherent powers to right a wrong which is to prevent injustice as envisaged in Rule 137.
In the case of Adorna Properties Sdn Bhd v Kobchai Sosothikul [2006] 1 MLJ 417 (PS Gill and Rahmah Hussein FCJJ and Richard Malanjum JCA, as he was then) Mr Kobchai Sosothikul - who was substituted for his late mother Mrs Boonsom Boonyanit - applied under Rule 137 of the Federal Court Rules 1955 to review the Federal Court's decision in Adorna Properties v Boonsom Boonyanit. Justice PS Gill dismissed the application for review. He said:
In the case of Adorna Properties Sdn Bhd v Kobchai Sosothikul [2006] 1 MLJ 417 (PS Gill and Rahmah Hussein FCJJ and Richard Malanjum JCA, as he was then) Mr Kobchai Sosothikul - who was substituted for his late mother Mrs Boonsom Boonyanit - applied under Rule 137 of the Federal Court Rules 1955 to review the Federal Court's decision in Adorna Properties v Boonsom Boonyanit. Justice PS Gill dismissed the application for review. He said:
Our reasons may be shortly stated. Firstly, although the consequence and effect of the main judgment [What main judgment? There is only Eusoff Chin's judgment] may be harsh when viewed without the benefit of the relevant statutory provision, we do not think this is a case where "grave injustice had occasioned" due to clear infringement of any principle of law thereby making it permissible for successive application to be made under the said rule.
Without going into the merits of this application we find that the substance of the main judgment revolves in the interpretation of section 340 subsection (3) including the proviso thereof of the National Land Code 1965.
And having read the reasoning therein and bearing in mind the words used in the said subsection including the proviso we are not convinced that the interpretation given in the main judgment is patently wrong thereby resulting in grave injustice thus warranting successive applications under Rule 137.
And even if we are wrong [in] our view it should be left to another occasion to further debate on the issue. For now we are of the opinion that … this is not a proper case for us to proceed to hear the merits or to grant the order as sought for.
This is the silliest judgment I have ever read. But then this is not surprising at all these days considering that we are being surrounded by a bunch of idiots in high places.
The facts of the Adorna case are well known. Recently the Federal Court has held in another case that Adorna is no longer good law. But PS Gill - the judge who has revealed himself to be an ignoramus in the law - was not convinced that the decision of Eusoff Chin in Adorna was patently wrong "thereby resulting in grave injustice thus warranting successive applications under Rule 137".
The late Mrs Boonyanit who is the registered owner had lost her two plots of land in Tanjong Bungah, Penang because some unscrupulous person had forged her signature and transferred the two plots to Adorna Properties.
Such registered titles now in the name of Adorna are clearly defeasible (it means "capable of being defeated or rendered void") because the registration of the transfer from the forger to Adorna was obtained by forgery. If it is defeasible it can be set aside.
Yet she lost her action to render void the registration of the transfer to Adorna. Is this not the gravest injustice committed against Mrs Boonyanit by Eusoff Chin who gave a perverse decision through a false interpretation of section 340 of the National Land Code?
Despite the unjust decision of Eusoff Chin in Adorna, PS Gill still holds that Eusoff Chin was not patently wrong as would result "in grave injustice thus warranting" the application of Rule 137.
The other errant Federal Court decision on Rule 137 is Asean Security Paper Mills Sdn Bhd v Mitsui Sumitomo Insurance (Malaysia) Bhd [2008] 5 AMR 377. This is what Abdul Hamid Mohamad, the then Chief Justice said, on page 381:
The facts of the Adorna case are well known. Recently the Federal Court has held in another case that Adorna is no longer good law. But PS Gill - the judge who has revealed himself to be an ignoramus in the law - was not convinced that the decision of Eusoff Chin in Adorna was patently wrong "thereby resulting in grave injustice thus warranting successive applications under Rule 137".
The late Mrs Boonyanit who is the registered owner had lost her two plots of land in Tanjong Bungah, Penang because some unscrupulous person had forged her signature and transferred the two plots to Adorna Properties.
Such registered titles now in the name of Adorna are clearly defeasible (it means "capable of being defeated or rendered void") because the registration of the transfer from the forger to Adorna was obtained by forgery. If it is defeasible it can be set aside.
Yet she lost her action to render void the registration of the transfer to Adorna. Is this not the gravest injustice committed against Mrs Boonyanit by Eusoff Chin who gave a perverse decision through a false interpretation of section 340 of the National Land Code?
Despite the unjust decision of Eusoff Chin in Adorna, PS Gill still holds that Eusoff Chin was not patently wrong as would result "in grave injustice thus warranting" the application of Rule 137.
The other errant Federal Court decision on Rule 137 is Asean Security Paper Mills Sdn Bhd v Mitsui Sumitomo Insurance (Malaysia) Bhd [2008] 5 AMR 377. This is what Abdul Hamid Mohamad, the then Chief Justice said, on page 381:
In an application for a review by this court of its own decision, the court must be satisfied that it is a case that falls within the limited grounds and very exceptional circumstances in which a review may be made. Only if it does, that the court reviews its own earlier judgment.
But that is not what Rule 137 says. Rule 137 is emphatic that the Federal Court has the power to hear or to make an order to prevent injustice or to prevent an abuse of the process of the Court.
However, this Federal Court ignored the Rule completely. Instead, it substitutes its own perverse prerequisite for any review of its own decision.
In a Rule 137 application, the aggrieved party is only concerned with whether an injustice was occasioned by the earlier decision of the Federal Court as in Adorna Properties v Boonsom Boonyanit or whether the process of the Court has been abused as disclosed in the Ayer Molek case.
The "limited grounds and very exceptional circumstances" has nothing to do with the application of Rule 137 at all. The conditions were manufactured by the bad judges of the Federal Court themselves in order to conceal the true intent or purpose of Rule 137 which is to avert an injustice or to prevent an abuse of the process of the court.
As usual the judges of the highest court in the land have shown their incompetence by missing the point altogether. The point is not "the limited grounds and very exceptional circumstances in which a review may be made". The point, in truth and reality, is whether the earlier decision has occasioned an injustice or whether it has abused the process of the court.
It seems that bad judges are birds of a feather. They flock together and support each other.
Uphill battle for Anwar
In a Rule 137 application, the aggrieved party is only concerned with whether an injustice was occasioned by the earlier decision of the Federal Court as in Adorna Properties v Boonsom Boonyanit or whether the process of the Court has been abused as disclosed in the Ayer Molek case.
The "limited grounds and very exceptional circumstances" has nothing to do with the application of Rule 137 at all. The conditions were manufactured by the bad judges of the Federal Court themselves in order to conceal the true intent or purpose of Rule 137 which is to avert an injustice or to prevent an abuse of the process of the court.
As usual the judges of the highest court in the land have shown their incompetence by missing the point altogether. The point is not "the limited grounds and very exceptional circumstances in which a review may be made". The point, in truth and reality, is whether the earlier decision has occasioned an injustice or whether it has abused the process of the court.
It seems that bad judges are birds of a feather. They flock together and support each other.
Uphill battle for Anwar
On Thursday 25 February 2010 the Federal Court unanimously decided not to review its January 29 decision barring Anwar from access to the documents “which would be tendered as part of the evidence for the prosecution” and “a written statement of facts favourable to the defence” which he is entitled to under section 51A(1)(b) and (c) of the Criminal Procedure Code.
Such evidence would have included CCTV footage, medical reports and witness statements from the prosecution.
Anwar made the application for the evidence to be delivered to him by the prosecution under section 51A (1) (b) and (c) of the Criminal Procedure Code. The Code was amended in 2006 to add this new provision: section 51A. It reads:
Such evidence would have included CCTV footage, medical reports and witness statements from the prosecution.
Anwar made the application for the evidence to be delivered to him by the prosecution under section 51A (1) (b) and (c) of the Criminal Procedure Code. The Code was amended in 2006 to add this new provision: section 51A. It reads:
51A. (1) The prosecution shall before the commencement of the trial deliver to the accused the following documents:
1. a copy of the information made under section 107 relating to the commission of the offence to which the accused is charged, if any;2. a copy of any document which would be tendered as part of the evidence for the prosecution; and3. a written statement of facts favourable to the defence of the accused signed under the hand of the Public Prosecutor or any person conducting the prosecution. (The emphasis is supplied by me)
(2) Notwithstanding paragraph (c), the prosecution may not supply any fact favourable to the accused if its supply would be contrary to public interest.
As rational members of the general public you would say at once that the words in section 51A (1)(b) and (c) are clear and unambiguous. They mean exactly what they say. Without a doubt Anwar is entitled to the documentary evidence and the statement he is asking under section 51A (1).
Yet when Anwar applied for the documentary evidence and written statement of facts to be supplied to him under section 51A(1)(b) and (c) the application was rejected by the Court of Appeal and by the Federal Court on the spurious ground that section 51 of the Criminal Procedure Code has restricted the application of section 51A to within the confines of section 51.
Yet when Anwar applied for the documentary evidence and written statement of facts to be supplied to him under section 51A(1)(b) and (c) the application was rejected by the Court of Appeal and by the Federal Court on the spurious ground that section 51 of the Criminal Procedure Code has restricted the application of section 51A to within the confines of section 51.
In other words, so say the Federal Court, section 51A has no meaning other than what case law has already determined on section 51. This is how the Federal Court puts it:
The Appellant cannot say at this stage that his defence is going to be so and so and that he needs to have access to such and such documents and materials to prepare for the defence. One settled principle attached to the application for discovery under s.51 CPC is that, at this pre-trial stage, a roving and fishing inquiry for evidence is not permissible. A catch all net cannot be cast.
The Appellant is not entitled to know by what means the prosecution proposes to prove the facts underlying the charge he faces. This remains the prerogative of the prosecution.
Mohd Azmi J, at the intermediate appeal in PP v RAYMOND CHIA (1985) 2 MLJ 63, described this situation neatly in this manner – "The important thing is to keep a proper balance between the right of the accused to know exactly what the charge is against him so as to give him reasonable opportunity to prepare his defence, and the right of the prosecution not to disclose their evidence and the manner in which they are to prove their case before trial in order to sustain our adversary system of criminal justice.
"To what extent the right of the prosecution not to disclose documents specifically referred to in the charge before trial is qualified by the right of the accused to be given reasonable opportunity to prepare his defence is of crucial importance in the administration of criminal justice."
In our view, the Appellant has thus not met the dual requirements of necessity and desirability laid down in s.51 CPC. We concur with the finding of the Court of Appeal on this issue.
The judgment of the Federal Court makes no sense at all. It is a non sequitur. It is gibberish to us all. Anwar Ibrahim is applying under section 51A of the CPC and not under section 51. Therefore, "the dual requirements of necessity and desirability laid down in section 51 CPC" does not apply to his application.
For one thing, section 51A came into force in 2006. The case law relied on by the prosecution on section 51 were those cases decided by the courts well before section 51A ever existed.
For another thing, section 51A states, "The prosecution shall before the commencement of the trial deliver to the accused … a copy of any document which would be tendered as part of the evidence for the prosecution" and "a written statement of facts favourable to the defence of the accused".
For one thing, section 51A came into force in 2006. The case law relied on by the prosecution on section 51 were those cases decided by the courts well before section 51A ever existed.
For another thing, section 51A states, "The prosecution shall before the commencement of the trial deliver to the accused … a copy of any document which would be tendered as part of the evidence for the prosecution" and "a written statement of facts favourable to the defence of the accused".
There is no ambiguity in those words. They mean exactly what they say. Now compare this with the wording of section 51 of the CPC. It reads:
51. Summons to produce document or other things.
(1) Whenever any Court or police officer making a police investigation considers that the production of any property or document is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Code by or before that Court or officer, such Court may issue a summons or such officer a written order to the person in whose possession or power such property or document is believed to be requiring him to attend and produce it or to produce it at the time and place stated in the summons or order.
(2) Any person required under this section merely to produce any property or document shall be deemed to have complied with the requisition if he causes the property or document to be produced instead of attending personally to produce the same.
(3) Nothing in this section shall be deemed to affect the provisions of any law relating for the time being in force or to apply to any postal article, telegram or other document in the custody of the postal or telegraph authorities.
Anwar entitled to documents
Anyone, unless he is an imbecile, can see immediately that section 51 and section 51A are as different as a chicken from a duck. Since section 51A stands separate and apart from section 51, Anwar is, therefore, entitled to make his application solely under section 51A for all the documentary evidence before the commencement of his trial that would be tendered as part of the evidence for the prosecution.
He is also entitled to a written statement of the facts favourable to his defence. Any denial of his statutory right by the Federal Court is an injustice to him. The decision of the Federal Court is unjust to Anwar because as a person who is the accused in a criminal prosecution he is entitled as of right, under the mandatory provisions of section 51A of the Criminal Procedure Code, to the documentary evidence "which would be tendered as part of the evidence for the prosecution" as well as to the "written statement of facts favourable to the defence of the accused".
Since Anwar has suffered injustice at the hands of both the Court of Appeal and the Federal Court for not applying the mandatory provisions of section 51A of the Criminal Procedure Code as they stand, the decision of the Federal Court in defiance of section 51A is, therefore, an unjust decision.
On an application for review under Rule 137 the Federal Court has no option but to set aside the earlier decision of the Federal Court to prevent injustice. But in the instant case, the reviewing Federal Court has defied Rule 137 by not exercising the inherent powers of the Court to set aside the unjust decision of the earlier court and, as a result, has allowed an injustice to be perpetuated.
With judges such as these in the Malaysian judiciary where, to them, the principles of the law are not to be consonant with justice to be manipulated by them to uphold injustice, it is no wonder that the errant judges have forfeited the confidence of the people. The general public does not respect such judges anymore! They have put themselves beyond the pale. Just like pariahs.
Don't you think they should be despised?
He is also entitled to a written statement of the facts favourable to his defence. Any denial of his statutory right by the Federal Court is an injustice to him. The decision of the Federal Court is unjust to Anwar because as a person who is the accused in a criminal prosecution he is entitled as of right, under the mandatory provisions of section 51A of the Criminal Procedure Code, to the documentary evidence "which would be tendered as part of the evidence for the prosecution" as well as to the "written statement of facts favourable to the defence of the accused".
Since Anwar has suffered injustice at the hands of both the Court of Appeal and the Federal Court for not applying the mandatory provisions of section 51A of the Criminal Procedure Code as they stand, the decision of the Federal Court in defiance of section 51A is, therefore, an unjust decision.
On an application for review under Rule 137 the Federal Court has no option but to set aside the earlier decision of the Federal Court to prevent injustice. But in the instant case, the reviewing Federal Court has defied Rule 137 by not exercising the inherent powers of the Court to set aside the unjust decision of the earlier court and, as a result, has allowed an injustice to be perpetuated.
With judges such as these in the Malaysian judiciary where, to them, the principles of the law are not to be consonant with justice to be manipulated by them to uphold injustice, it is no wonder that the errant judges have forfeited the confidence of the people. The general public does not respect such judges anymore! They have put themselves beyond the pale. Just like pariahs.
Don't you think they should be despised?
NH CHAN was admitted to the Bar in 1961 and was a lawyer for almost two decades before becoming a High Court judge. He was then elevated to the Court of Appeal before retiring in 2000. He is the author of two books, Judging the Judges (2007) and How to Judge the Judges.
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