Jeyaretnam - Voice of an Opposition

Singapore's Political & Legal Icon

Friday, 03 October 2008
Chee Soon Juan

Dear Mr Jeyaretnam,

I visited you one last time on Tuesday. I've never seen you so peaceful and contented.

This is such a change from all the years that we've been working together. I remember how bitter we felt sitting in your rented apartment at Orange Grove Road after the 1997 elections. The place has since been turned into swank, upscale serviced-apartments. We were drafting a letter to the United Nations to ask for the monitoring of future elections here.

It was a tedious job recounting everything that had happened: the hounding of Tang Liang Hong, the threats made against voters, and the gatecrashing of polling stations by ministers. The task was made lighter only with the delightful combination of the savoury Indian vadai and Earl Grey you served.

I remember also asking you about the copy of Long Walk to Freedom by Nelson Mandela sitting on your coffee table. You said that once in a long while, there comes a man who achieves greatness without having to cause the suffering of others.

On another occasion, my wife and I visited you at another rented house. From the outside, we could see a few of your shirts hanging by the window ledge on the upper floor. Mei said that she felt sorry that you had to do your own laundry at your age without anyone sharing those chores with you.

This reminds me of the time when we were driving along Serangoon Road and you wanted to stop by to pick up a bunch of flowers. I had asked you what the occasion was. You said it was your wedding anniversary and that your late wife, Margaret, would have liked the bouquet.

Then there was the time when we visited New York City . I was surprised when you mentioned that that was the first time you had set foot in the US . We had checked into this small hotel and struggled with our luggage along the narrow and dingy corridor. And as I fumbled for the key to open the door, I heard you mutter to yourself: "Oh Ben, what have you gotten yourself into?"

My heart sank when I heard you say that. I was feeling a little depressed myself and I was hoping to get some cheer from you. Seeing you so despondent made my own morale wobble.

But I knew that you were feeling depressed and anxious because of yet another lawsuit. As we put our weary heads on the emaciated pillows, you said that they didn't just want to win politically but were determined to also crush us personally.

We made a pact that night that while we may not yet be able to beat them politically, we would not allow them to defeat us on the personal front. They may take away all our possessions, but they will never take away our will to speak up. And then you said that we needed to rest as "tomorrow's another day that we have to fight."

The next morning I came out from the shower and saw you reading the Bible. We talked a little about the Book of Ecclesiastes. Then you knelt down by the bed to say a prayer and I joined you. We prayed for strength and sustenance.

Rejuvenated, we went down to what New Yorkers call a "deli" for breakfast. I remember you asking me what a bagel was and I said that it was the American version of the vadai. You chortled and we mouthed down a couple of Ham and Cheeses. Actually, I did. You found the bagels a little too hard.

During breakfast we talked about setting up an NGO to advocate transparency and democracy in Singapore . When we came back, we had a bit of a laugh seeing how the gentleman at the Registry of Companies squirmed as he tried to handle our application for the "Open Singapore Foundation".

After rejecting the term "Foundation", "Institute" and a couple of others, the ROC finally allowed the use of "Centre". Thus was born the first human rights NGO in Singapore .

We left New York and you headed south to Florida to visit your son. When you returned, you bought my daughter a little pink teddy bear. It squeaks when you press its tummy. When she was a little older, we told her who bought it for her. She named it "JB Bear" because she couldn't quite pronounce your name.

My wife said that it was funny to think of this cute little pink bear and picture you at the same time, a big elderly man with bushy hair and your trademark "mutton chops". You always made her jump a little whenever your voice boomed through the phone: "Is that you, Mei?"

Several months later, your worst nightmare came true. You were found guilty of defamation again and you now had to vacate your seat in Parliament for the second time. I remember talking to you on the phone after your appeal was rejected. You sounded so crestfallen.

I had asked you if you wanted to talk, but you said that you just wanted to be "alone for a while." The next day we met for lunch near your office at North Bridge Road . We got into a heated argument. I had asked you not to continue paying the money and playing into the hands of Lee and his people..

I knew you were angry at me for saying so, but I also knew that you wanted me to be honest with you. Through the years, we have had our clashes and disagreements. But we always knew that we were locked in spirit and that we would always remain true to each other and to what we believed in. No matter how serious our disagreements, we always stood on the same side.

As you lay down to rest, democracy is not yet at hand. But don't you ever believe those who say that your fight on earth was irrelevant and personal. Nothing could be further from the truth. You have inspired an entire generation of Singaporeans and we will keep the fight going.

We will keep on reaching for that star in the black sky, that shimmering distant star of liberty. If we are closer to touching it, it is because we stand on your shoulders.

Your legacy and walk on earth will not only remain but it will grow. You have left a void that cannot be filled.

I think of that night in New York when we pledged not to let them defeat our persons. You've kept your end of the pact. They may still have the power but, boy, you sure showed them what a fighter for truth is. You leave us with honour and dignity, no one could buy you over and no one did. And even though you did not possess millions in your bank account, the treasure which you have stored is with you today and forever.

Goodbye, Ben, I will miss you.

But even as I mourn your death, I celebrate your life because it has touched mine. You have fought the good fight and now you have been called home to rest. They cannot hurt you anymore. Until we meet again, dear friend, I will always remain

Yours in Justice and Freedom,

Soon Juan

Why did the chicken cross the road? OBAMA,, MC CAIN, the CLINTONs, BUSH ........

Finally, some authoritative answers to this age-old question!

BARACK OBAMA:
The chicken crossed the road because it was time for a CHANGE!
The chicken wanted CHANGE!
JOHN MC CAIN:
My friends, that chicken crossed the road because he recognized the need to engage in cooperation and dialogue with all the chickens on the other side of the road.
HILLARY CLINTON:
When I was First Lady, I personally helped that little chicken to cross the road. This experience makes me uniquely qualified to ensure -- right from Day One! -- that every chicken in this country gets the chance it deserves to cross the road. But then, this really isn't about me.......
GEORGE W. BUSH:
We don't really care why the chicken crossed the road. We just want to know if the chicken is on our side of the road, or not. The chicken is either against us, or for us. There is no middle ground here.
JOHN KERRY:
Although I voted to let the chicken cross the road, I am now against it! It was the wrong road to cross, and I was misled about the chicken's intentions. I am not for it now, and will remain against it.
MARTHA STEWART:
No one called me to warn me which way that chicken was going. I had a standing order at the Farmer's Market to sell my eggs when the price dropped to a certain level. No little bird gave me any insider information.
BILL GATES:
I have just released eChicken2007, which will not only cross roads, but will lay eggs, file your important documents, and balance your check book. Internet Explorer is an integral part of the Chicken. This new platform is much more stable and will never cra...#@&&^(C% .......... reboot.
BILL CLINTON:
I did not cross the road with THAT chicken. What is your definition of chicken
MARTIN LUTHER KING JR.
I envision a world where all chickens will be free to cross roads without having their motives called into question.

Pointers To Live

Just some thoughts to keep your chin up....

Don't let the DOWNERS get to you
Have you not known some people whose primary objective, it may seem, in life is to get you down. I call them downers - people who put you down.
Identify these souls, and then forgive and ignore them.
No one can make you feel inferior without your consent.
Eleanor Roosevelt

Don't carry that baggage with you.
No matter what has happened and what will happen, kicking yourself in the butt & carrying all those bricks on your back, seldom helps.
forgive yourself first to love others.

"All blame is a waste of time. No matter how much fault you find with another, and regardless of how much you blame him, it will not change you. The only thing blame does is to keep the focus off you when you are looking for external reasons to explain your unhappiness or frustration. You may succeed in making another feel guilty about something by blaming him, but you won't succeed in changing whatever it is about you that is making you unhappy."
Wayne Dyer

Here's a story

Two monks were traveling down a road beside a river. They came upon a woman sitting on the bank with her head in her hands and tears streaming down her face. One monk asked what was troubling her and she responded that her child was on the other side of the river, alone and afraid. She told the monk that she had lost her way and could no longer find a shallow crossing. Immediately, the monk invited her to sit on his shoulders and he carefully forded the river, depositing her on the opposite bank. She thanked him with a big hug and ran off to find her child. The monk returned to the other bank and his fellow monk. They continued on their stroll. As they continued, however, the fellow monk angrily chastised his friend for assisting the woman. "You know it is against the rules of our order to have contact with a woman", he said. "And to have such close physical contact, at that!". The monk simply shrugged his shoulders and continued to walk. Displeased with the lack of response from his fellow monk, the chastising monk repeated his consternation with greater emphasis. Realizing that this upset would likely not end for the fellow monk, the monk looked at him and replied, "I deposited that woman on the opposite bank. Why do you still carry her?"

Live life ........ feel the love around you,
another story

Two men, both seriously ill, occupied the same hospital room. One man was allowed to sit up in his bed for an hour each afternoon to help drain the fluid from his lungs. His bed was next to the room's only window. The other man had to spend all his time flat on his back.

The men talked for hours on end.

They spoke of their wives and families, their homes, their jobs, their involvement in the military service, where they had been on vacation.

Every afternoon, when the man in the bed by the window could sit up, he would pass the time by describing to his roommate all the things he could see outside the window.

The man in the other bed began to live for those one hour periods where his world would be broadened and enlivened by all the activity and color of the world outside.

The window overlooked a park with a lovely lake.
Ducks and swans played on the water while children sailed their model boats. Young lovers walked arm in arm amidst flowers of every color and a fine view of the city skyline could be seen in the distance.

As the man by the window described all this in exquisite details, the man on the other side of the room would close his eyes and imagine this picturesque scene.

One warm afternoon, the man by the window described a parade passing by.

Although the other man could not hear the band, he could see it in his mind's eye as the gentleman by the window portrayed it with descriptive words.

Days, weeks and months passed.

One morning, the day nurse arrived to bring water for their baths only to find the lifeless body of the man by the window, who had died peacefully in his sleep.

She was saddened and called the hospital attendants to take the body away.

As soon as it seemed appropriate, the other man asked if he could be moved next to the window. The nurse was happy to make the switch, and after making sure he was comfortable, she left him alone.

Slowly, painfully, he propped himself up on one elbow to take his first look at the real
world outside.

He strained to slowly turn to look out the window beside the bed.

It faced a blank wall.

The man asked the nurse what could have compelled his deceased roommate who had described such wonderful things outside this window.

The nurse responded that the man was blind and could not even see the wall.

Lastly, ..... the quote I promised,

There are two ways to live: you can live as if nothing is a miracle; you can live as if everything is a miracle. .. Albert Einstein

Its all in the language – Clinton Statesman's Statement

Antinomianism, anti - against, nomos – law , unlawful.
Antinomianism is the polar opposite of legalism, the notion that obedience to a code of religious law is necessary for salvation.

Clinton's denials

Initially, he repeatedly used the present tense "there is not a sexual relationship" with Lewinsky.
what about the past?

The next phase “there had not been an improper relationship”
Some people coin this as - legalistic doublespeak

He didn't "mislead" his family and everone -- he simply lied

Lewinsky informed Tripp that Clinton favored oral sex – that such an act did not constituted adultery. Ms. Lewinsky said in her grand jury testimony that she performed oral sex on Mr. Clinton.

Clinton denied he commited adultery. In his legal defenses, the President tried to distinguish between ''sexual relations'' and oral sex.

The definition of adultery is consensual sexual intercourse with a partner that is not your husband or wife.

Adultery is the voluntary sexual intercourse between a married person and another person who is not his or her spouse. Adultery is also referred to as extramarital sex, philandary or infidelity but does not include fornication. Fornication, or simple fornication, is a term which refers to voluntary sexual intercourse between persons not married to each other. The term "adultery" for many people carries a moral or religious association, while the term "extramarital sex" is morally or judgmentally neutral. (Wikipedia)

In the law of Divorce, adultery is voluntary sexual intercourse with another, one or both of them being married . The intercourse must involve some penetration but need not be complete.

The Old Testament says , that committeth adultery with another man's wife." So adultery meant sexual intercourse between a man and a married woman not his wife. Leviticus 20:10

Go back 2 spaces to why fornication is not adultery.. ?

Nevertheless, Oral sex, for example, would be a violation of your covenant promise ……….. adultery?

In conclusion, remember Clinton’s infamous "I didn't inhale" in respect of when he seen smoking marijuana in his student days at England.

Lets not go that direction.

Contumelious Delay

It is trite law that in application to strike out for want of prosecution, Birkett v James [1978] AC 297 at 318 F-G, Lord Diplock said, that the power should be exercised sparingly, that is where the court was satisfied either that “the default has been intentional and contumelious”, or that the delay was “inordinate and inexcusable” and had given rise to “a substantial risk that it is not possible to have a fair trial”.

Recaptulating:-
default has been intentional and contumelious; or
the delay was “inordinate and inexcusable”, therefore
a substantial risk that it is not possible to have a fair trial

An appellant court will seldom interfere with the dicretion of the judge in 1st instant unless the judge took into account the irrelevant factors, failed to take into account relevant factors, or has reached the conclusion that no reasonable judge could have reached, that his decision can be interfered with on appeal - see per Lord Diplock in Birkett at 317 E-G.

In Department of Transport v Chris Smaller Limited [1989] 1 WLR 1197 at 1120C, Lord Griffiths said that the Judicial Committee of the House of Lords “will only re-examine” a decision not to strike out for want of prosecution upheld by the Court of Appeal “in exceptional circumstances”

That is, it is not the function of an appellate court to carry out its own balancing exercise.

Application – 2 case studies

Lyons J, in Privy Council Appeal No 43 of 2006, Conticorp S.A. & 3 Ors v The Central Bank of Ecuador & 3 Ors, an appeal from the Bahamas, carefully described the history of these proceedings and directed himself in accordance with the principles laid down in Birkett. He then concluded that the delay of some six and a half years between the issue of proceedings and the taking out of the appellant’s summons to strike out was not “contumelious”, and, while he considered that it was “arguable” that the delay was “inordinate”, he did not consider that it was “inexcusable”. If the delay was inexcusable, he was doubtful whether it had given rise to a substantial risk that there could not be a fair trial. Although the Court of Appeal appear to have thought that their reasons for dismissing the appeal on this ground were different from those of the Judge, their grounds were very similar. They considered that there had been “undue delay in bringing the action to trial”, but that, once one apportioned the blame for this delay between the plaintiffs and the defendants, the delay for which the plaintiffs were responsible was insufficiently great to be characterised as “inordinate and inexcusable”, and in any event, the defendants had failed to establish that any delay that had occurred had resulted in any unfair prejudice to them.

In Malaysia, Chin Vui Khet v Progressive Insurance Bhd , Ian Chin J stated that

“A case will only be struck out if the court is satisfied that not only that there had been inordinate and inexcusable delay but also that the delay has given rise to a substantial risk that a fair trial is not possible. In the present case there is no question of any intentional or contumelious conduct since there was no disobedience to any peremptory order. Since establishing prejudice is necessary before the application can succeed if remains to be examined what prejudice the Defendants could possibly have suffered. Generally, the Defendants alluded to their inability to trace the other Defendant against whom judgment was already obtained for the purpose of getting him to testify for the Defendants and that a lot of the events have to be recalled from memory which is not possible due to the long passage of time. But we are dealing, as a result of the defence raised, with a matter of the construction of an indemnity to determine whether it is uncertain as alleged by the Defendants. For the purpose, the instrument will be looked at and that is not dependent on any oral recollection and such will not play any part. It is the same with the issue of consideration which again is not dependent on any recollection from memory. So too, the question of whether the Plaintiff had already recovered certain sum which should go towards diminution of the Plaintiff’s claim. Therefore there is no substance in the Defendants’ contention that they have been prejudiced. In so far as the matter hanging over the head, it does not really matter since they are not professionals whose reputation will be at stake. In this regard the magistrate was correct in her view that this case depended much on documents and she was correct in exercising her discretion not to strike out the claim”

Justice Delayed Justice Denied - An Analysis of Abuse in Civil Litigation

This shall be a series of articles on abuse - protracted litigation.

The (2nd) million dollar question (the 1st one being costs) for a litigant to ask his Counsel (the 1st being Costs - refer to blog), "..... so .. how long is all this going to take?"

It is an answer which many lawyers have not only "put their foot in" but have had it teased, chewed and to devour with ketchup. The client waited with bated breath only to receive himalayan blunders.

This question is signicant not only to the litigant but to the entire judicial mechanism, from the chief justice to the fumbling advocate.

This premiliminary acticle would serve as an introduction.

1. Abuse by Judge
2. Abuse by Counsel
3. Practice & Procedural Inadequcies

Before I embark on this task, I which to highlight an excellent speech of the Indian President A.P.J. Abdul Kalam. He commented:-

“honest implementations are not impeded by unsustainable or motivated litigations or honest persons vilified through public glare based on such filings,”

He added, human rights were being violated, there was a lack transparency and almost 3% of the population was affected by the prolonged litigation (2005)

The cause he said, and I strongly believe this to be a start..

1. Inadequate number of courts and judical officers,
2. Officers not equipped to tackle cases involving specialised knowledge,
3. Dilatory tactics by litigants and their lawyers
4. COurt Administrative staff - the role played (or lack of it)

Philosophically he concluded “a human touch at the grassroots level ..will reduce the load in our courts.”

Are we doing anything about this?

The New Straits Times reported on Friday August 6, 2004 that the then CJ was out to clear backlog of cases Shophouses were to be used as courts if necessary. Whereas the CJ was emphasising on criminal cases, this is what he had to say. The courts were employing extensive use of witness statements in trials. Civil court judges would be used for criminal cases as althought we can justify the need for the increase (in judges), but the number of judges that we get will depend on the national budget. Yeo Yang Poh, the Bar Council’s vice-president commented “We have seen a real effort in the clearing up of cases. The Chief Justice and the judiciary are doing their best. We should work together to reduce the backlog.”

Sometimes, less said the better.

It is imparetive that we, the government, the judicial system and the public do something about this NOW, ... or we have only ourselves to blame if we let grass grow around our feet. Justice Delayed Justice Denied

Abandoned Projects (2) tips

It is prudent when faced with an (potential) abandoned project that various precautionary measures be adopted.

One of the first things to go are the wiring, which are commonly ripped out from the walls. Therefore, one has no idea if there is wiring from point A to point B. The copper value is usually the primary reason for the vandals to do so.

Secondly, unpaid suppliers will usually sabotage the pipes etc. This may require very expensive and troublesome rectification as it would involve removing and destroying perfectly good fittings.

Thirdly, do be concerned about surreptitious "illegal" use of various sections of the project whilst the other parts are being "rectified".

Lastly, it is always strange but premises that all left long without use and unattended develop its own problems like leaking, stains, marks etc.

Trial by Internet – Sub judice

Trial by Internet – Sub judice

Are peoples using the internet to have a go on "their" issue.

Trial by Media and even more rampant, by the internet, would have no holds barred and what is put up on the internet and public domain cannot be restrained that easily.

Examples, of lynching on the net

The case of a woman who was thrown to a Korean cyber lynch mob for failing to clean up the mess her dog had left behind has put the international spotlight on the country’s sometimes vicious online community.
"Subway Fracas Escalates into Test of the Internet's Power to Shame,” the Washington Post headlined a story on the "Dog Poop Girl" on Thursday. The paper said the incident revealed the power of the Internet and provided "a peek into an unsettling corner of the future" of the cyberworld, in turn sparking debate among experts and bloggers in the U.S.

http://english.chosun.com/w21data/html/news/200507/200507080017.html

What about using the net to deliver a verdict

When his mother’s inheritance was apparently stolen by his belated stepfather’s best friend, author Ian Coburn was shocked to learn from authorities that such incidents occur frequently. It’s a crisis that flies under the radar.

In an effort to immediately warn the public of this epidemic, Ian created a website on April 1st, sharing the full story of the loss of his mother’s inheritance. In an added twist, the site invites viewers to vote on the perpetrator’s guilt or innocence after reviewing posted documented evidence. Could this be a new wave? Trial by Internet? Currently, 130 votes have been cast.

The site is www.saveinheritance.com. Visitors to the site are encouraged to use it to segue way into a discussion of the arrangements for their demise, as well as their parents’ and grandparents’, where applicable.

http://www.prlog.org/10066761-trial-by-internet-mother-inheritance-stolen-by-best-friend.html

Sub judice .........

Chinese Internet authorities have ordered websites—including a Chinese language environmental NGO site operated by China Development Brief (www.greengo.cn)—to remove an open letter from twelve organisations calling for a fair trial for jailed environmental activist, Wu Lihong
However, in April of this year Wu was arrested by local authorities in his home city of Yixing and has since been charged with blackmail. Prosecutors claim he “extorted 55,000 yuan from enterprises by threatening to expose how they were polluting the environment,” according to Xinhua.
On June 11 The China Daily reported that “China has sacked or otherwise punished five officials [from Yixing] for dereliction of duty” in connection with the lake’s pollution, and also referred to Wu’s arrest on “a charge some say was trumped up by vengeful officials.”
The now-suppressed open letter from environmental NGOs did not allege that the charge was “trumped-up.” Rather, it urged that “all the evidence should be examined carefully, the verdict should be reached independently by the court . . . and the court should not accept any evidence that was not lawfully obtained.”
First circulated on June 5, World Environment Day, the letter also called for the trial to be open to the public and the press, arguing that otherwise “the public will be led to conclude that the judicial process is being used to take revenge to a higher level

http://www.chinadevelopmentbrief.com/node/1157

In this respect, look at this open threads.

http://www.haloscan.com/comments/truecrimeweblog/5679895540739036095/

http://news.scotsman.com/ViewArticle.aspx?articleid=3308814

Sub judice & Trial By Media

Sub Judice - The matter is before a judge or court of law awaiting judicial determination

In the Common Law Jurisdictions, it is practice not to comment on cases pending in Court, sub judice. Comments and Reports (“Reporting”) must be distiguished in this respect. The rational is the this would tantamount to “usurpation” of the Court/Judge’s disposition on the same. It also may constitute interference with due process.

Due process, fundamental fairness, places restrains/safe guards on the Executive and Judiciary when a person’s rights and liberty is brought into question. The Doctrine can trace back to the Magna Carta "No free man shall be taken or imprisoned or disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land." and is also enshrined in the Fifth and Fourteenth Amendment in the Common Law and American Jurisductions respectively. Invietable all this shall lead to natural justice, the Rule of Law and Seperation of Powers.

A subjudice comment can be punished by contempt of court proceedings. This is particularly so a criminal cases, where publicly discussing cases sub judice.
In the American Jurisdictions such right to comment is said to fetter the right of free speech. Nevertheless the rule on professional ethics restricts any out-of-court statements on an ongoing case. This would seem to apply only in respect of “attorneys”.

The 1st Amendments
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

What about “trial by media”?

A judge may feel curtailed if “commentaries” (on a case which he is sitting) lead up to “opinions” and “opinions” further lead up to “conclusions” which the Judge, even more importantly the Jury and/or the Public may have taken on an issue/made a decision. The Law on the matter will then take 2nd seat as to what is public opinion.

For example in the case of the famous tv presenter, Ulrika Jonsson, the media actually named the “accused”, and thereafter the media took it on the road (with investigations and commentaries).

The controversy over the naming of a celebrity who allegedly raped television presenter Ulrika Jonsson has become one of those stories where the accusation of "trial by media" has again surfaced. The conduct of the media in such cases has been in the spotlight since the killing of Soham school girls Holly Wells and Jessica Chapman earlier this year. As soon as arrests were made, a host of newspapers investigated the backgrounds of Ian Huntley and Maxine Carr, the pair eventually charged in connection with the deaths. The frenzy was such that the Attorney General eventually warned of the dangers of prejudicing a trial.
Media ethics campaigners Presswise see similar "trial by media" similarities between the Soham case and the current reporting of the Ulrika man.

On Wednesday, the man's name became public when Channel 5's The Wright Stuff inadvertently named the man.

The London Evening Standard's executives debated with their lawyers what they could report and decided to follow up.

"The attitude seemed to be the Standard didn't have much to lose because Channel 5 had already named him," said an insider.

"If they didn't go with it now, they knew all the morning papers would."
So the newspaper splashed the man's name and picture on its front page, emphasising that he had been named by Channel 5.

Thursday morning saw all the tabloids plus one broadsheet run the story, some detailing allegations from other women.

Sky News, followed by ITN, brought his name to television viewers. But it doesn't end there.

At least one spoof picture of the accused man is doing the office e-mail circuit, the content of the message bitingly describing his downfall.

Furthermore, the Channel 4 celebrity chatshow, V Graham Norton, briefly displayed a picture of the man without mentioning the case. It provoked ironic boos from the audience.

Legal quagmire

Tom Welsh, editor of Media Lawyer and co-editor of the legal textbook found in every newsroom, said trial by media involved two separate issues - defamation and prejudice of juries.

"If you say someone committed rape you have to prove it," said Mr Welsh.
"If you say someone is accused of rape and is being investigated, that will convey the defamatory meaning that he is under suspicion and there are reasonable grounds for suspicion."

But Mr Welsh said that the critical factor is whether or not the media had covered their backs by getting an official statement from the police saying someone is under investigation. This had not happened in the Ulrika case.
"I think the newspapers are on very dodgy ground here," he warned.
But he added fears of influencing juries are not necessarily well founded.
Senior judges and law lords say the risk of prejudicing a jury is related to how much time passes between a newspaper's allegations and a date of a trial.
"The assumption is that juries will be swayed by what they read in The Sun," said Mr Welsh.

"But judges tend to take a different view that we underestimate juries."
Campaigners say that this isn't good enough.

"If we look at the man in the Ulrika case, this will leave his career in ruins, whether or not he is guilty.
"I have to question the motives of the newspapers in these cases," said Mr Norris.
"Are they genuinely trying to bring people to justice or trying to increase circulation?"
http://news.bbc.co.uk/2/hi/uk_news/2361089.stm

Trial by media took a further turn when conversely the Jury was instead fed with the interviews and press statements for their deciding processin the Soham murder trial

During the 10 days the girls were missing, Huntley and Carr made numerous appearances on television and in print.
They were interviews which were eventually to hold a courtroom spellbound by their coolness and audacity.

And the journalists who conducted them found their encounters with the pair had become crucial evidence.
Over the course of the trial, the jury watched first Huntley and then his former girlfriend describe their fears for the girls and the hopes of the local community that they would be found safe and well.

Lisa Mitchell
http://news.bbc.co.uk/2/hi/uk_news/3295123.stm

A further interesting read,

Trial By Media -- Do's and Don'ts.
Jonathan Bernstein, Saturday, 12th April 2003

1. DON’T make the media your primary means of communicating on pending or current litigation in progress. Journalists are not a reliable means of ensuring that your key audiences receive your messages, nor is it a reporter’s job to make sure everything you think is important gets to the right people.

2. DO communicate directly with your important audiences, internally and externally, to ensure they have the information you want them to have about matters being tried in the media.

3. DO consider the option of informing certain key audiences of the probability of media coverage on a legal matter before it appears in the press.

4. DO remember that employees are a critical audience -- all employees are PR representatives for the organization whether you want them to be or not.

5. DO integrate legal and PR strategy, because you’ll be educating the jury pool while also minimizing damage that could occur to your organization in the short-term, even if you win the legal case in the long-term.

6. DO explore the use of publicity about generic or related issues relevant to your particular case or client as a legitimate means of bringing attention to issues that might result in pre-trial settlements, or to develop similar examples to illustrate the issues in your case.

7. DON’T say "no comment" if you haven’t had a chance to review the case. Say "I’d very much like to comment on this as soon as I’ve read what’s been filed." If appropriate, add: "I still don’t have a copy of it myself, could you fax or email one over?"

8. DO tell journalists that you want to respect their deadlines, but would appreciate their respecting your need to have the information you need to make an intelligent response.

9. DON’T attack the media. Ever. Neither directly, nor in communication with other audiences, because it will get back to them. The media can hurt you more than you can hurt them. Most media outlets LOVE being sued or threatened, it sells more papers or air time.

10. DON’T judge the impact of media coverage by the sensationalism of headlines or length of news coverage. Ask your important audiences, internal and external, how THEY are reacting to the coverage -- in some cases, you’ll find they don’t believe it!

11. DO consider becoming your own publisher, using the Internet to post your perspective on issues of public concern -- IF the general public is, in fact, an important audience for you. Or even on a password-protected Web site for selected audiences that are important to you.

12. DON’T assume that you know how to talk to reporters about negative news just because you’re skilled at "good news" interviews -- get media trained.

13. DO establish both internal and external rumor control systems to short-circuit rumors early on, before they do too much damage.

http://www.4hoteliers.com/4hots_fshw.php?mwi=63

The Gita

What are the two verses that serve as two banks of the river of life?

"sraddhâvân labhathe jnânam":
One who has steadfastness and sincerity can obtain wisdom.

"samsayâtmâ vinasyati":
One who doubts will come to ruin.

The Internal Security Act

Internal Security Act is the legislation that enable the government to preserve the internal security, amonst its power it authorizes the arrest and detention without trial for a duration.

Article 78 of the Fourth Geneva Convention 1949
"If the Occupying Power considers it necessary, for imperative reasons of security, to take safety measures concerning protected persons, it may, at the most, subject them to assigned residence or to internment."

Consider Article 9 of the International Covenant on Civil and Political Rights
"makes clear that no-one should be subjected to arbitrary detention and that deprivation of liberty must be based on grounds and procedures established by law".

We have the 'Internal Security Act (Malaysia)', 'Internal Security Act (Singapore)', 'Internal Security Act (South Africa)' and in America. Subversive Activities Control Act, McCarran Act . some Sections (not all) of the Subversive Activities Control Act, McCarran Act has been since ruled unconstitutional by the Supreme Court.

In Israeli this legislation is known as Administrative detention, applied to equally Palestinianian and occasionally Jewish right-wing extremists. The period of Administrative Detention orders goes up to 6 months where there is a reasonable threat to the security of the state and can be extended


The Internal Security Act 1960 (ISA) Malaysia was inherited from Britain ,in essence, it allows for the arrest of any person without the need for trial in certain defined circumstances for over 2 years. Initially and primarily needed for communist insurgents.

Section 8(1) of the ISA provides detention where the minister is satisfied that any person has acted in any manner prejudicial to the;
a) security of Malaysia or part thereof;
b) maintenance of essential services;
c) economic life.
Section 8(7), allows renewal of this 2 year period, indefinately

A Mareva Injunction

A mareva injunction is an equitable relief but not as to preserve the status quo but as an aide to execution. It is a preventive relief to restrain the Defendant from dissipating assets (out of the jurisdiction). All that the Plaintiff is required to show is that:- They have a prima facie case; The Defendant has assets within the jurisdiction; There is a real risk of assets being dissipated before judgment. Order 29, Rules of The High Court, 1980 Mareva Compania Naviera SA v International Bulkcarriers [1975] 2 Llyods Rep 509 Ninemia Maritime Corp v Trave Schiffahrtsgesellschaft mbH; The Niedersachsen [1984] 1 All ER 398, on appeal [1984] 1 All ER 413 S&F International Ltd v Transcon Engineering Sdn Bhd [1985] 1 MLJ 62 Bank Bumiputra Malaysia Berhad v Lorrain Osman [1985] 2 MLJ 236 Biasamas Sdn Bhd & Ors v Kan Yan Heng & Anor [1998] 4 MLJ 1 Good arguable case All that is required to show in a good arguable case is that, on the evidence available, there is a fair chance that the Plaintiff can obtain judgment. Ninemia Maritime Corp v Trave Schiffahrtsgesellschaft mbH; The Niedersachsen [1984] 1 All ER 398, on appeal [1984] 1 All ER 413. There is no need to show a case so strong as to warrant summary judgment. Biasamas Sdn Bhd & Ors v Kan Yan Heng & Anor [1998] 4 MLJ 1 A Mareva injunction case obtained more speedily than a summary judgment which may preclude the applicant from enjoying the fruits of his judgment. Third Chandris Shipping Corporation v Unimarine SA [1979] 2 All ER 972

DNA

Abstract

In a number of recent cases in the UK, convictions have been quashed by the Court of Appeal on the grounds that the jury had been misdirected as to the factual significance of random occurrence statistics. The mathematical basis on which those statistics are calculated was reviewed and recent appeal cases involving DNA evidence in the UK and the US were examined. It was found that a widespread misconception exists regarding the random occurrence ratio and its relationship with probability of guilt. It is in fact impossible to relate the two with any degree of accuracy without consideration of social and demographic factors particular to a case as well as any non-DNA evidence obtained.

http://linkinghub.elsevier.com/retrieve/pii/S0379073802001986

Also on complexity of evidence being out to a jury. (Malaysia has abolished jury trial long since)
http://www.ornl.gov/sci/techresources/Human_Genome/publicat/judicature/article10.html

Carole McCartney

DNA evidence is a powerful investigative tool, able to incriminate as well as exculpate. Yet, increasingly common portrayals of DNA as being able to solve crimes almost instantaneously, beyond any doubt, even from ‘beyond the grave’, may overstate the degree to which DNA currently assists in criminal investigations. Strong government support, and financial investment in the DNA Expansion Programme, have been bolstered by repeated legislative extensions of police powers to obtain and retain DNA samples. Despite this, DNA evidence remains marginal in terms of assisting with overall criminal detections and experts now suggest that the massive National DNA Database expansion has not resulted in the improvement in detection rates originally anticipated. This paper also suggests potential concerns over the ‘tactical’ use of DNA evidence during suspect interviews, and the risk of abbreviated police investigations. Insufficiently ‘forensically aware’ police officers may resort to DNA evidence in lieu of proper detective work, with literature on ‘case construction’ informing analysis of potential pitfalls of early reliance on DNA results, which may increase the risk ‘tunnel vision’ in criminal investigations.

http://bjc.oxfordjournals.org/cgi/content/abstract/46/2/175

more on DNA

The value of DNA evidence has to be seen in light of recent cases where criminals planted fake DNA samples at crime scenes. In one case, a criminal even planted fake DNA evidence in his own body: Dr. John Schneeberger of Canada raped one of his sedated patients in 1992 and left semen on her underwear. Police drew Schneeberger's blood and compared its DNA against the crime scene semen DNA on three occasions, never showing a match. It turned out that he had surgically inserted a Penrose drain into his arm and filled it with foreign blood and anticoagulants.(emphasis mine)

Evidence from an expert who has compared DNA samples must be accompanied by evidence as to the sources of the samples and the procedures for obtaining the DNA profiles. The judge must ensure that the jury must understand the significance of DNA matches and mismatches in the profiles. The judge must also ensure that the jury does not confuse the 'match probability' (the probability that a person that is chosen at random has a matching DNA profile to the sample from the scene) with the 'likelihood ratio' (the probability that a person with matching DNA committed the crime). In R v. Doheny, EWCA Crim 728 (1996). Phillips LJ gave this example of a summing up, which should be carefully tailored to the particular facts in each case:
Members of the Jury, if you accept the scientific evidence called by the Crown, this indicates that there are probably only four or five white males in the United Kingdom from whom that semen stain could have come. The Defendant is one of them. If that is the position, the decision you have to reach, on all the evidence, is whether you are sure that it was the Defendant who left that stain or whether it is possible that it was one of that other small group of men who share the same DNA characteristics.
Juries should weigh up conflicting and corroborative evidence, using their own common sense and not by using mathematical formulae, such as Bayes' theorem, so as to avoid "confusion, misunderstanding and misjudgment".

http://en.wikipedia.org/wiki/DNA_fingerprinting#Fake_DNA_evidence

Criminal Defamation, Malice and Public Figures

Defamation is a statement, written or oral (libel or slander respectively) which is published (to a 3rd party) to lower one’s self esteem in the estimation of the community/right thinking members of the society.

Criminal Defamation is where the state prosecutes the maker, unlike in civil cases where the victim sues the maker. Its origin’s and purpose was to predominantly defend “political leaders” or protect the smooth running of “stately functions”.

The criminalisation of defamation evinces the state’s/country’s interest in prosecuting such act, thus the penal slant to it. Such charges are rare because of the ever expansion of freedom of expression thoughts/laws in many countries.

In other words my right to say it outweighs your right to retrain me from doing so.

There are human rights organisation such as ARTICLE 19 with a specific mandate and focus on the defence and promotion of freedom of expression and freedom of information worldwide – “ We believe that all people have the right to freedom of expression and access to information, and that the full enjoyment of this right is the most potent force to achieve individual freedoms, strengthen democracy, and pre-empt repression, conflict, war and genocide”


But surely one’s right of expression cannot extend to publishing what is untrue, particularly in the case of public figures.

Thus, there is the defence of fair comment on a matter of public interest. In the American jurisdiction, its "equivalent" - the public figure doctrine.

Public Figures can rely on this protection. The test is simply one that acknowledges the presence or absence of malice. In the absence of malice such statements must be published knowing it to be false or with reckless disregard to its truth, i.e. the term “actual malice” - New York Times Co. v. Sullivan, 376 U.S. 254 (1964)


The primary Defence to Defamation is Justification in the British system or Truth in the American jurisdiction respectively.


Other defences of public interest are, firstly Privilege - Absolute and Qualified, the former cannot be sued on in its entirety (e.g. a judge’s judgement, dicta) even with the presence of malice and the latter, statements made furtherance to public interest or duty can only be sued if there is a malicious intent.

In English criminal law, mens rea , Latin for guilty mind, was considered in R v. Cunningham (1957) 2 AER 412

(1) an actual intention to do the particular kind of harm that in fact was done; or
(2) recklessness as to whether such harm should occur or not (i.e. the accused has foreseen that the particular kind of harm might be done and yet has gone on to take the risk of it).

Thus, consider the element of intent in something done recklessly.

Therefore, if one makes a statement Recklessly, it could be said that such statement was made maliciously too. In this event, the Defence of Fair Comment, Privilege and Public Figure Doctrine must fail with the presence element of malice.

In Litigating, the element of Malice must be given its predominance.

the Rule of Law .. saved ?

reference is made to PP v. KOK WAH KUAN wherein an extract of the judgement is repruduced hereinbelow. The Federal Court composed of AHMAD FAIRUZ CJ, ABDUL HAMID MOHAMAD PCA, ALAUDDIN MOHD SHERIFF CJ (MALAYA), RICHARD MALANJUM CJ (SABAH & SARAWAK), ZAKI TUN AZMI FCJ.

some interesting points in the judgement

"Judges have wide discretion in determining when they apply and to what extent".

and then the learned judge proceeded with examples

1. Formulating original precedents

Life is larger than the law and there is no dearth of novel situations for which there is no enacted rule on point. In such situations a judge relies on the customs and traditions of the land and on standards, doctrines and principles of justice that are embedded in the life of the community to lay down an "original precedent" to assist the court. Admittedly, this fashioning of a new precedent is an infrequent occurrence but its impact on legal growth is considerable;

2. Overruling earlier precedents
Judicial creativity is fully in play when a previous precedent is overruled and thereby denied the authority of law. The overruling may be retrospective or prospective. In either case a new principle is contributed to the legal system and a new direction is forged;

3. Constitutional review
Under arts. 4(1) and 128 of the Federal Constitution, the Superior Courts of this country have the power to review the validity of legislative and executive actions by reference to norms of the basic law. If a legislative measure is found by the court to be unconstitutional, the court has a number of choices. It may condemn the entire statute as illegal or it may apply the doctrine of severability and invalidate only the sections that are unconstitutional and leave the rest of the statute intact. The court may declare the statute null and void ab-initio or only from the date of the ruling. For instance in Dato’ Yap Peng v. PP [1987] 2 MLJ 31 the Supreme Court invalidated s. 418A of the Criminal Procedure Code prospectively.
Questions of constitutionality are fraught with political and policy considerations and decisions thereon can influence the course of legal and political development. For example in Faridah Begum v. Sultan Ahmad Shah [1996] 2 CLJ 159 the majority held that the 1993 constitutional amendment removing the immunities of the Sultans cannot apply to suits brought by foreigners.
Article 162(6) of the Federal Constitution allows judges to modify pre-Merdeka laws in order to make such laws conform to the Constitution. Modification is without doubt a legislative task.

4. Statutory interpretation
In interpreting pre-existing law a judge is not performing a mere robotic function. The interpretive task is, by its very nature, so creative that it is indistinguishable from law-making. "The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law." (per the American jurist Oliver Wendell Holmes). This is specially so in constitutional law. Even if it is accepted that a judge is bound by the intention of the legislature, it must be noted that such an intention is not always clearly defined. The formal law is so full of ambiguities, gaps and conflicts that often a judge has to reach out beyond the statute to seek a solution to the problem at hand. (See: Chiu Wing Wa & Ors v. Ong Beng Cheng [1994] 1 CLJ 313). A judge may scrutinise preambles, headings and extraneous materials like explanatory statements that accompany Bills and parliamentary debates to help unravel the meaning of statutory formulae. A judge may lean on the interpretation clauses of a statute or on the Interpretation Act 1948/1967 to decipher the intention of the legislature. Or he may fall back on a wealth of rules of statutory construction to aid his task. So numerous and varied are these rules that judicial discretion to rely on one rule or another cannot be predicted. Sometimes a judge’s attention is drawn to foreign legislation and related precedents. He may declare the overseas statute to be in pari materia with local legislation and, therefore, relevant to the case. Alternatively, he may pronounce the local law to be sui generis and therefore to be viewed in the local context without aid of foreign decisions.
When the enacted law leads to undesirable or unjust results, a judge may be persuaded to add moral or public policy shades to the issue in order to do justice.
One could also note, for instance, the "public interest" interpretation of art. 5(3) of the Federal Constitution in Ooi Ah Phua v. Officer-In-Charge Criminal Investigation, Kedah/Perlis [1975] 1 LNS 117 in which the court held that the constitutional right to legal representation can be postponed pending police investigation. In Teoh Eng Huat v. Kadhi Pasir Mas [1990] 2 CLJ 11; [1990] 1 CLJ (Rep) 277 the "wider interest of the nation" prevailed over a minor’s right to religion guaranteed by art. 11. In Hajjah Halimatussaadiah v. Public Services Commission [1992] 1 CLJ 413; [1992] 2 CLJ (Rep) 467 the court subjected a public servant’s claim of a religious right to wear purdah at the workplace to the need to maintain "discipline in the service".
A judge is not required to view a statute in isolation. He is free to view the entire spectrum of the law in its entirety; to read one statute in the light of related statutes and relevant precedents; to understand law in the background of a wealth of presumptions, principles, doctrines and standards that operate in a democratic society. (See: Kesultanan Pahang v. Sathask Realty Sdn. Bhd. [1998] 2 CLJ 559). He is justified in giving effect to what is implicit in the legal system and to crystallize what is inherent. Such a holistic approach to legal practice is justified because "law" in art. 160(2) is defined broadly to include written law, common law and custom and usage having the force of law.

5. Operation of doctrine of binding precedent
The doctrine of binding judicial precedent exists to promote the principle of justice that like cases should be decided alike. It also seeks to ensure certainty, stability and predictability in the judicial process. There can be no denying that the existence of this doctrine imposes some rigidity in the law and limits judicial choices. But one must not ignore the fact that some flexibility and maneuverability still exist.
Though a superior court is generally reluctant to disregard its own precedents, it does have the power "to refuse to follow" its earlier decisions or to cite them with disapproval. Our Federal Court has, on some occasions, overruled itself. High Court judges occasionally refuse to follow other High Court decisions. An inferior court can maneuver around a binding decision through a host of indirect techniques.

6. Application of doctrine of ultra vires
Whether an agency has acted ultra vires is a complex question of law that permits judicial creativity.
Some statutes declare that discretion is absolute or that a decision is final and conclusive. Some statutory powers are conferred in broad and subjective terms. To statutory formulae of this sort, contrasting judicial responses are possible. The court may interpret them literally and give judicial sanction to absolute powers.
Alternatively the court may read into the enabling law implied limits and constitutional presumptions of a rule of law society. This will restrict the scope of otherwise unlimited powers. (See: R v. Lord Chancellor, Ex p Witham [1998] QB 575). Subjective powers may be viewed objectively. Purposive interpretation may be preferred over literal interpretation. (See: Public Prosecutor v. Sihabduin bin Haji Salleh & Anor [1981] CLJ 39; [1981] CLJ (Rep) 82).
When procedural violations are alleged, a decisive but discretionary issue is whether the procedure was mandatory or directory. Violation of a mandatory procedure results in nullity. Violation of a directory requirement is curable.

7. Import of rules of natural justice
Rules of natural justice are non-statutory standards of procedural fairness. They are not nicely cut up and dried and vary from situation to situation. Judges have wide discretion in determining when they apply and to what extent

Consider Public Prosecutor v. Kok Wah Kuan which has been reproduced in this blog "But as judges we have to apply the law as it exists. We simply have no choice whatever in the matter."

Address by YA Dato' Vincent Ng Kim Khoay

For some of you that have inquired and whom I have spoken, the learned Judge's address is reproduced herein for your easy reading. It will be posted in my blog for a bit. Do be inspired.


Address by YA Dato' Vincent Ng Kim Khoay on marriage of his son, Mr. Michael Ng on 30 November 2007

Y.Bhg. Datin Hamidah Chong, the graceful representative of YAA Dato’ Abdul Hamid Haji Mohamad, President of Court of Appeal and Acting C.J., Puan Ambiga Sreevenasan, Chairman of the Malaysian Bar Council, my brothers and sisters at the Bench, my former brothers and sisters at law for over a score and six years, Tan Sri-Tan Sri, Dato’ Sri-Dato Sri, Dato’-Dato’, Datin-Datin and my very dear friends.
Surely, this auspicious occasion must concern the marriage couple and the societal institution of marriage. About the bridegroom: from the locale of tonight’s function you may have observed that my son Michael is an incorrigible environmentalist. He rejected air-conditioning and has chosen to make this public declaration of his union with his beloved wife in this wonderful romantic setting of green grass, natural fresh air, a hoped for starry skies, ivory coloured upholstery for the table and chairs placed before a cool water backdrop and all conjoined with soft lilting string instruments music. I thought I had guided Michael to focus and plan correctly. Little did I know that he could focus so well, so as to be in accord with the future trend of greening the Earth, and planed the whole works before he left or Australia. Furthermore, his fixed focus did not, even for a moment, veer from the question of a good father’s duty – which he is fully conscious he himself would have to assume about 30 years hence – that is, to pick up the tab for all these relaxed ambience where even the mosquitoes have deserted us.
Now, let me make some observations about Michael’s Adelene, the chosen one. Michael first met Adelene during my first tour of duty as a judge in Penang (for 4 ½ years) when he was in Form 3 at St. Xavier’s Institution. Three months before he was due to sit for his SPM exam, I was transferred (of course not at my request) to Kangar, Perlis. Michael had, though under protest, to follow us yet he kept in constant contact with Adelene. After 2 years 10 months I was transferred to Alor Star, Kedah where I served for 2 more years before I was persuaded by Y. Bhg. Tun Mohamad Dzaiddin to move down to Kuala Lumpur to head the Commercial Division. I must say that it turned out to be a privilege to serve Perlis and Kedah. It is of interest to note that good judges like Y. Bhg. Dato’ K.C. Vohrah, YA Dato’ Hishamuddin, YAA Dato’ Alauddin, YA Dato’ Ariffin Zakaria and even the late Tun Suffian have served in Alor Star.
Alor Star was then an attractive town to be transferred to – perhaps attractive to the transferor rather than the transferees, if I could use the such a term. Of course, if we are short of words we could always say “correct, correct, correct, correct”. All the years that I was in Kangar, Alor Star and Kuala Lumpur, Michael still kept in close contact with Adelene. My wife and I often wondered why their relationship was on such abiding and firm footing. His attention and focus was never, even for a moment, averted to any other girl. I couldn’t appreciate the reason why this was so until we got to really know Adelene, after a few years. Clearly, the reason is that Michael’s girl is so much like his mother, in character and disposition. Of course it is my hope that Adelene has chosen Michael because he so much like his father, but that would be presumptuous of me. Well, as many have said: “Michael is a chip of the old block”. If you know my character, need I say more?
Young single women today faced a serious problem when it comes to finding a prospective husband, due to the following observations. It has been said that “Fifty per cent of all available men are married or spoken for. Another 30 per cent are gay and a further 10 per cent are jerks. This would mean that single women have so little choice as they are running around trying to attract only 10 per cent of men”. You may, through your own observation, assign your own percentages to the above, but the gist of this observation is not wholly baseless. Then, there is also this audacious but humorous comment by a wit as to why ladies today are still single: “Nice men are ugly; handsome men are not nice; handsome and nice men are gay; handsome, nice and heterosexual men are married; men who are not so handsome, but are nice men, have no money; men who are not so handsome, but are nice men with money, think women are only after their money; handsome men without money are after women’s money; handsome men, who are not so nice and somewhat heterosexual, don’t think women are beautiful enough; men that are heterosexual, somewhat nice and have money and who think women are beautiful, are cowards; men who are somewhat handsome, somewhat nice and have some money and thank god are heterosexual, are shy and NEVER MAKE THE FIRST MOVE!!!; men who never make the first move, automatically lose interest in women when they take the initiative. Now, who the hell understands men?”. So, having carefully observed and tested the character of Michael and Adelene, I am convinced that they are indeed within the lucky 10 per cent in their mutual choice.
Let us consider the institution of marriage, of which much have been said and advised. Cyril Connally says that: “The particular charm of marriage is the duologue, the permanent conversation between two people who talk over everything and everyone. A happy marriage is a long conversation that always seems too short”. Don Fraser and Doug Larson have opined that: “A happy home is one in which each spouse grants the possibility that the other may be right, though neither believes it” and “More marriages survive if the partners realized that sometimes the better comes after the worse.” On the other hand let me now quote the famous centenarian Mr. George Burns who declared: “Lots pf people have asked me what Gracie and I did to make our marriage work. It’s simple – we didn’t do anything. I think the trouble with a lot of people is that they work too hard at staying married. They make a business out of it. When you work too hard at a business you get tired; and when you get tired you get grouchy; and when you get grouchy you start fighting; and when you start fighting you’re out of business.” This man lived to 101 years old. I don’t believe him, so I won’t live to a hundred – perhaps only long enough to write my memoirs. But he is a comedian who would think you are crazy if you believe him. Then, there is one Mr. Ogden Nash who wrote that: “To keep your marriage brimming with love in a loving cup, whenever you’re wrong admit it; whenever you are right shut up”. Well, if you agree with his last advice, don’t marry a good judge, for he will never shut up if he thinks he is right.
To all those who have irretrievably tied the knot my advice is to be fair and gracious to each other and think positively. And, to all those who intend to commit themselves to a marriage partnership, do chose a spouse with the right genes. Here you have a choice, unlike what I have said about how to be a good judge: “it is easy, just have the right genes”. The following excerpts from my address to the Perak Barristers of the Inns of Court, London at a dinner in Syuen Hotel, Ipoh on 16th February 2001 (see (2001)2MLJ pg.xxxvii), could bear recall:
“In this critical periods of judicial history, what, you may wish to ask, are the essential qualities of a judge? In my opinion, when considering a candidate for this high office, which exclusively involves the dispensation of (and not dispensing with) justice, the qualities to look for are in the following order of priority: (i) intellectual honesty with unquestionable probity and integrity; (ii) analytical prowess; (iii) industry and a good command of language; (iv) knowledge of the law; (v) judicial temperament; and (vi) a keen awareness of the prevailing milieu or conditions in the society in which he or she functions. The first two qualities are innate, and the rest may be acquired. In this regard, I wholly support the Bar’s view that in order to ensure objectivity in the evaluation of a potential candidate’s suitability for appointment as Judicial Commissioners, or for confirmation and promotion of judges, he or she should first be vetted by a worthy and credible selection board” (now taken to mean a Judicial Appointments Commission).
We certainly have in our midst good judges who, for the sake of this beloved nation, would inexorably march to their personal calamity in answer to the call of their immutable genes.
It is an incontrovertible truism that every act of integrity, compassion, unflinching courage and sacrifice demonstrated to our children would encourage them to emulate our example. What will matter is how long we will be remembered, by whom and for what, and whether our children will be proud to declare the name of their father. Live so that when your children think of fairness and integrity they think of you. A further observation in that, couples who are happily married have learnt to live with their spouse with tolerance, even though their patience might wear thin at times. They have accepted each other’s faults and are willing to compromise. Life brings unpredictable circumstances; happiness, sadness, success, disappointments and failure – all these are part of sharing a life together. You do not need to love your in-laws if they are unlovable, but your relationship with them must always be fair and correct. It is wise to always bear in mind that your spouse and children are watching you - silently.
As there are many good judges here, sitting or retired, who grace this occasion, I must take this opportunity to venture this comment. The judiciary has been criticized by members of the public at most functions, even our friends and secretaries tell us so. But let me say this : our only shield against such lambasting is to administer justice with good conscience as reflected in our written judgments. I must congratulate those judges who have written such good, honest-to-God judgments. It is perhaps appropriate to quote what Julian Huxley has to say about the eternal permanency of the written word: “By speech first, but far more by writing, man has been able to put something of himself beyond death. In tradition and in books an integral part of the individual persists, for it can influence the minds and action of other people in different places and at different times: a row of black marks on a page can move a man to tears, though the bones of him that wrote it are long ago crumbled to dust”. Since this is true, it would thus follow that our children and grand children would have to live with the good or the bad that is reflected in our written judgments. We do not write to please anyone but only the Judge of History and the Judge of Conscience. It is now obvious to the wise and perceptive that we are inhabitants of a globalised world governed by the dictates of an IT driven cyberspace, where there is hardly any shelter for the corrupt. The above quotation by Julian Huxley was crafted in very potent language. So also was the following words of the late Rev. Martin Luther King Jr., a great orator, that will ring in my ears until I draw my last breath: “I have a dream that my four little children will one day live in a nation where they will not be judged by the colour of their skin but by the content of their character.”
Indeed, I believe that our beloved nation would never be one nation until the majority of its citizens abide by Rev. Martin Luther King’s dream. Now, in the context of the institution of marriage, I would add that it is the character of your spouse that will determine the fullness of the content of your happiness. It is good to have a way with words, like Martin Luther and Julian Huxley. It is not so good to have a way with women, because your good wife would not be happy and you may be accused of being a womanizer or a dead wood, hence not promoted; of course, the real reason may perhaps be that you do not have a way with men.
Lots of advice to the married couple from me, but I have a wish. My wish is that, at the end of a long and fruitful day in their lives together, my son could hold the same sentiments of his wife as I do of my beloved – of whom I have this to say, and I say it now before all of you. Providence has indeed endowed me with the perpetual freshness of her extrinsic beauty and more importantly, the beauty of her intrinsic character. She is totally incapable of any rancour or spite to anyone, while generous to a fault with her abiding love for me and the children. Certain kinks in the character of most men are often only tempered by the sensitive tact of a perceptive wife. Talking about irascible men, yet I may be genetically programmed to excel such men on this score at times. Many husbands think that their good wives are skillful only on the mundane irrelevant things in life. Little do they realize that it is precisely the mundane features of life such as the emotional support derived from wifely companionship through fair and foul weather, that is not only relevant in this turbulent world, but would keep their husbands on even keel. Yet if, upon reflections during interludes of quietude, a husband could appreciate this salutary feature of his relationship, his marriage would develop into a blissful tryst with destiny. I am indeed fortunate not to have to look elsewhere for love or solace, being ever so grateful to God for this masterpiece of His creation, that has so fortuitously come my way, to walk with me, hand in hand, in my sole and solitary journey through this Earth.
I must thank my honoured guests who have so graciously taken time off to be present here tonight to grace the occasion. The invitation was perforce, extended to only such a limited number of our friends. This is a truly small party where all of you have clearly reciprocated so graciously to my hand of friendship by being here tonight, mindful that some of my invitees could not be present due to the sacred call of duty to perform the Haj. This is what I would call the strength of significance in small numbers. My sincere thanks to all of you here tonight.

Rule by Law Killed the Rule of Law

News and Events June 16th, 2008
Has Rule by Law Killed the rule of Law in Malaysia?

Professor Ratna Rueban Balasubramaniam will be presenting his paper “Has Rule by Law Killed the Rule of Law in Malaysia?” on July 23, 2008, to the Faculty of Law at the National University of Singapore.

The writer considers "the use of the legal form as a cloak for arbitrary power, creates a serious problem of domination that can undermine the law-like character of legal order as a framework of norms that should facilitate the interests of legal subjects".

He refers to the decision by Malaysia’s highest court, the Federal Court, in Public, Prosecutor v. Kok Wah Kuan, where the majority rejected the separation of powers as an ‘integral’ feature of the constitutional order while the sole dissenting judge defended the principle as fundamental to democracy and the rule of law.


http://www2.carleton.ca/law/has-rule-by-law-killed-the-rule-of-law-in-malaysia/

This decision is reproduced hereinbelow for your reading. Please feel free to refer to the conclusion where the judge states "But as judges we have to apply the law as it exists. We simply have no choice whatever in the matter." and work backwords from this.




DALAM MAHKAMAH RAYUAN MALAYSIA (BIDANGKUASA RAYUAN) RAYUAN JENAYAH NO. W – 05 – 69 – 2003ANTARA KOK WAH KUAN … PERAYU DAN PENDAKWA RAYA … RESPONDEN (Daripada Mahkamah Tinggi Malaya di Kuala Lumpur Perbicaraan Jenayah Bil. 45-27-2002) Coram: Gopal Sri Ram, J.C.A. Zulkefli bin Ahmad Makinudin, J.C.A. Raus Sharif, J.C.A. JUDGMENT OF THE COURT1. The appellant before us was convicted of the offence ofmurder under section 302 of the Penal Code alleged to have been committed on 30 May 2002 in the Federal Territory of Kuala Lumpur. He was then 12 years and 9 months old. His conviction was entered on 1 July 2003 and he was ordered to be detained during the pleasure of the Yang di-Pertuan Agong pursuant tosection 97(2) of the Child Act 2001. Section 97 reads as follows: “(1) A sentence of death shall not be pronounced or recorded against a person convicted of an offence if it appears to the Court that at the time when the offence was committed he was a child.

In lieu of a sentence of death, the Court shallorder a person convicted of an offence to be detained in a prison during the pleasure of – (a) the Yang di-Pertuan Agong if the offence was committed in the Federal Territory of Kuala Lumpur or the Federal Territory of Labuan; or (b) the Ruler or the Yang di-Pertua Negeri, if the offence was committed in the State. (3) If the Court makes an order under subsection (2) that person shall, notwithstanding anything in this Act— (a) be liable to be detained in such prisonand under such conditions as the Yang di-Pertuan Agong or the Ruler or the Yang di-Pertua Negeri may direct; and (b) while so detained, be deemed to be in lawful custody. (4) If a person is ordered to be detained at a prison under subsection (2), the Board of Visiting Justices for that prison

3(a) shall review that person's case at leastonce a year; and (b) may recommend to the Yang di-Pertuan Agong or the Ruler or the Yang di-Pertua Negeri on the early release or further detention of that person and the Yang di-Pertuan Agong or the Ruler orthe Yang di-Pertua Negeri may thereupon order him to be released or furtherdetained, as the case may be.” 2. The appellant now argues that section 97 is ultra vires theFederal Constitution in that it violates the doctrine of separation of powers housed in the supreme law. The argument is that the power to impose punishment in a criminal case is a judicial power.What section 97 does, according to learned counsel for the appellant, is to vest this judicial power of punishment in the Executive arm of the Federation. Two issues therefore arise out of the appellant’s complaint. First, whether the doctrine of separation of powers is an integral part of the Constitution: second, whether section 97 in pith and substance violates that doctrine. 3. Prior to 10 June 1988, Article 121 of the Constitution opened with the words “the judicial power of the Federation shall be vested”. This phrase was taken by the framers of our Constitution from section 71 of the Australian Constitution. It was interpreted by Griffith C.J. in Huddart, Parker and Co Proprietary Ltd v Moorehead (1908–1909) 8 CLR 330, to mean “…the power which every sovereign authority must of necessity have to decide controversies between its subjects, or between itself and itssubjects, whether the rights relate to life, liberty or property. The exercise of this power does not begin until some tribunal which has power to give a binding and authoritative decision … iscalled upon to take action.” This definition was cited with approval by the Privy Council in Shell Co of Australia Ltd v Federal Commissioner of Taxation[1931] AC 275.4. However, by Act A704, Article 121 was amended with effect from 10 June 1988 and the expression “judicial power” was deleted. No challenge as to the constitutionality of Act A704 was ever taken before any court. To our minds such a challenge, even if taken, would have failed because the amendment did not have the effect of divesting the courts of the judicial power of the Federation. There are two reasons for this. First, the amendingAct did nothing to vest the judicial power in some arm of the Federation other than the courts. Neither did it provide for the sharing of the judicial power with the Executive or Parliament or both those arms of Government. Second, the marginal note to Article 121 was not amended. This clearly expresses the intention of Parliament not to divest the ordinary courts of the judicial power of the Federation and to transfer it to or share it with either the Executive or the Legislature. 5. Now, marginal notes are admissible guides to statutory interpretation. Indeed – “It is now well settled that a marginal note is a part of the section. It is the key to open the mind of the legislature by affording guidance in understanding their intendment.” See, TheFilm Exhibitors Guild v State AIR 1987 AP 110, per K Ramaswamy J on behalf of the Full Bench. Of course, guidelines for statutory interpretation should not be applied when interpreting a Constitution. See, Hinds v The Queen [1976] 1 All ER 353, per Lord Diplock. But, a marginalnote in a written Constitution is nevertheless part of the supreme law and “furnishes some clue as to the meaning and purpose of the Article”. See, Bengal Immunity Co. Ltd v State of Bihar AIR 1955 SC 661, per Das, Ag CJ at para. 24. In Sugumar Balakrishnan v Pengarah Imigresen Negeri Sabah & Anor [1998] 3 MLJ 289, this Court said: “The Constitution of Sri Lanka (formerly Ceylon) does not even mention the expressionjudicial power. Yet, upon high authority it hasbeen held that despite the omission, the provisions in that document: ‘… manifest an intention to secure in the judiciary a freedom from political,legislative and executive control. They are wholly appropriate in a Constitution which intends that judicial power shall be vested only in the judicature. They would be inappropriate in a Constitution by which it was intended that judicial power should be shared by the executive or the legislature. The Constitution’s silence as to the vesting of judicial power is consistent with its remaining, where it had lain for more than a century, in thehands of the judicature. It is not consistent with any intention that henceforth it should pass to or be shared by, the executive or the legislature (perLord Pearce in Liyanage v The Queen[1967] 1 AC 259 at p 287).’The Indian Constitution also does not make mention of judicial power being vested in thejudiciary. Yet, the same position obtains there as in Sri Lanka. See Minerva Mills Ltd v Union of India AIR 1980 SC 1789. Like the Constitutions of Sri Lanka and India, the Federal Constitution preserves the separation of powers between the three arms of Government and evinces no intention that the judicial power ofthe Federation shall be passed to or shared with the Executive or the Legislature. It follows thatthe judicial power of the Federation remainswhere it has always been, namely, with the judiciary.” That is a view to which we still adhere. 7. In Hinds v The Queen, Lord Diplock made two observations that are applicable to the case at hand. In the first place he said ofthe Jamaican Constitution that – “It is taken for granted that the basic principle of separation of powers will apply to the exercise of their respective functions by these three organsof government.” He then made this further observation:“What, however, is implicit in the very structure of a Constitution on the Westminster model is that judicial power, however it be distributed from time to time between various courts, is to continue to be vested in persons appointed to hold judicial office in the manner and on the terms laid down in the Chapter dealing with the judicature, even though this is not expressly stated in the Constitution: Liyanage v The Queen[1967] 1 AC 259, 287-288.” 8. Based on the foregoing discussion, it is in our judgment beyond argument that the doctrine of separation of powers is very much an integral part of the Federal Constitution. Since Article 4(1) declares the Constitution to be the supreme law, it follows that any State action that violates the doctrine of separation of powers must be struck down as unconstitutional. And that brings us to the second issue that has fallen for determination. 9. In support of his argument that section 97(2) violates the doctrine of separation of powers between the Executive and theJudiciary, learned counsel for the appellant relied on Director ofPublic Prosecutions v Mollison [2003] UKPC 6. The facts ofthat case were these. The accused, Mollison was convicted of the murder one Leila Brown during a robbery, an offence which, by the law of Jamaica carried the death penalty. However, as Mollison was 19 years at the date of his conviction the trial judge, acting under section 29(1) of the Juveniles Act 1951 of Jamaica,ordered detention during the Governor-General’s pleasure. Subsections (1) and (4) of that section provided as follows: “(1) Sentence of death shall not be pronounced on or recorded against a person convicted of an offence if it appears to the Court that at the time when the offence was committed he was under the age of eighteen years, but in place thereof the court shall sentence him to be detained duringHer Majesty’s pleasure, and, if so sentenced, he shall, notwithstanding anything in the otherprovisions of this Law, be liable to be detained in such place (including, save in the case of a child, an adult correctional centre) and under such conditions as the Minister may direct, and while so detained shall be deemed to be in legal custody. (4) The Governor-General may release on licence any person detained under subsection (1) or (3) of this section. Such licence shall be in such form and contain such conditions as the Governor-General may direct, and may at any time be revoked or varied by the Governor-General. Where such licence is revoked the person to whom it relates shall return forthwith to such place as the Governor-General maydirect, and if he fails to do so may be arrested by any constable without warrant and taken to such place.” 10. Mollison argued that section 29 was incompatible with the separation of judicial from executive power which he said was afundamental principle upon which the Constitution of Jamaica was built. The argument found favour with the Privy Council. Lord Bingham of Cornhill who delivered the advice of the Board after having initially considered the accused’s submission on the point ambitious nevertheless treated it as having already been settled by the Board’s decision in Hinds. He also made the following observation of section 29 which, in our judgment, is the fulcrum upon which the case turned: “It is also a key feature of this sentence inJamaica (although no longer in the United Kingdom) that the decision on release is entrusted to the Governor-General as a memberof the executive. Section 29(4) of the Juveniles Act as amended has that express effect. This feature also has been clearly recognised: see The State v O’Brien [1973] IR 50 at 59-60, 64, 71-72; R v Secretary of State, Ex p Venables [1998] AC 407 at 498-499, 519-524, 530-532; Browne v the Queen [2000] 1 AC 45 at 48; V v United Kingdom (1999) 30 EHRR 121, paras 110-111. Thus while, in a case falling within section 29(1), the judge sitting in court passes sentence, it falls to the executive to determine the measure of punishment which an individual detainee will undergo: Hinds v The Queen [1977] AC 195 at227-228. It is clear that such determination is for all legal and practical purposes a sentencing exercise: see R (Anderson) v Secretary of State for the Home Department [2002] 3 WLR 1800, pp 1812, 1822-1823, 1830, [2002] UKHL 46, paras 24, 52, 74 and the authorities there cited.” 11. Two points emerge from the above-quoted passage. First, the power to pass sentence and the power to determine the measure of punishment are both part of the judicial power. Second, that section 29 consigned the latter power to the Executive. We may add that our courts have already held that the sentencing power is a judicial power. Thus in Public Prosecutor v Dato’ Yap Peng [1987] 2 MLJ 311, Zakaria Yatim J (whose decision was upheld by the Supreme Court) said: “In the context of criminal law, the Court possesses the judicial power to try a person foran offence committed by him and to pass sentence against him if he is found guilty.” 12. Now, look at section 97(2). It is clear from its plain readingthat Parliament has consigned the power to determine the measure of the sentence that is to be served to the Yang di-Pertuan Agong in the case of an offence committed in any of the Federal Territories and to the Ruler or Governor in the case of the severalStates of the Federation. By Article 39 of our Constitution, the executive authority of the Federation is vested in the Yang di Pertuan Agong. Save on certain matters that are not in issue here, the Yang di Pertuan Agong is a constitutional monarch and must, in accordance with Article 40(1), act in accordance with the advice given him by the Cabinet or a particular Minister of the Cabinet.
Thus – “when one finds in the Constitution itself or in a Federal law powers conferred upon the Yang di-Pertuan Agong that are expressed to be exercisable if he is of opinion or is satisfied that a particular state of affair exists or that particularaction is necessary, the reference to his opinion or satisfaction is in reality a reference to the collective opinion or satisfaction of the members of the Cabinet, or the opinion or satisfaction of a particular Minister to whom the Cabinet have delegated their authority to give advice upon the matter in question”, per Lord Diplock in Teh Cheng Poh v Public Prosecutor [1979] 1 MLJ 50. 13. In our judgment, applying settled principles, section 97(2) clearly contravenes the doctrine of separation of powers housed in the Constitution by consigning to the Executive the judicial power to determine the measure of the sentence that is to be served by the instant appellant. Section 97(4) does not, in our considered judgment, rescue the second subsection from unconstitutionality. If anything it compounds the problem. For, that subsection doesin fact confirm that it is the Yang di Pertuan Agong who
determines the measure of the sentence that is to be served, save that it is a power that is exercised on the advice of a Board ofVisiting Justices. Hence section 97(4) is merely a procedural adjunct to the principal power to determine the measure of the sentence that the appellant is to serve. 14. There are two short matters that need to be dealt with beforewe conclude. First, it was pointed out during argument that there may be other statutes, e.g., section 348 of the Criminal Procedure Code, which make provision for the detention of persons at the pleasure of the Yang di Pertuan Agong, or a Ruler or Governor. It was said that striking down section 97(2) may affect those otherprovisions. With respect, we do not agree. As was pointed out by the Indian Supreme Court in In re the Special Courts Bill, 1978 AIR 1979 SC 478, the constitutionality of a particular provision must be determined in each case as it arises. Our conclusion that section 97(2) is inconsistent with the Constitution does not extend to a declaration of unconstitutionality of other equipollent provisions. The validity of these other provisionsmust be dealt with on a case by case basis as and when the occasion arises. In the specific case of section 348 of the CriminalProcedure Code, it is a pre-Merdeka and hence a pre-Constitution provision. It must therefore be dealt with in accordance with the principles set out in Assa Singh v Menteri Besar, Johore [1969] 152 MLJ 30 which were applied by this Court in Kerajaan Negeri Selangor v Saggong Tasi [2005] 4 CLJ 169. In the case of pre-Merdeka statutes, the courts are empowered to “apply the existing law with such modifications as may be necessary to bring it into accord with the Constitution”: Surinder Singh Kanda v The Federation of Malaya [1962] MLJ 169, per Lord Denning). Wedo not have such a power in respect of laws enacted post-Merdeka. In respect of such laws, the only power we have, under Article 4(1) of the Constitution is to either uphold them as being intra vires the supreme law or strike them down as being inconsistent with it. Consequently, once a law is found to violate the Constitution the court has no choice but to declare it void and of no effect. So much for the constitutional ground. 15. The other point in the case is this. Learned counsel for the appellant when opening his argument said that quite apart from the constitutional argument, there were other grounds in the petition of appeal which he said he would leave on file. This, of course, required the learned deputy who responded to the appeal to argue the merits of the appeal. We must say at once that this was a gruesome murder and that there is abundant material on record to support the conviction of the appellant. The victim in this case was found to have had 20 stab wounds. This clearly points to an intention to kill. There is absolutely no evidence to bring the case within one of exceptions. The learned trial judge admirably dealt with the evidence and drew the proper inferences from it. In our judgment the conviction is therefore entirely safe. 16. What is to be the upshot? This is a case in which Parliament has provided for the entry of a conviction and passing of sentence but has made no valid law for the measure of sentence. A similar situation arose in Soon Kim Seng v Public Prosecutor [1978] 2 MLJ 107. There, the accused was convicted on 3 charges of having in his possession contrivances capable of being used for the purposes of making infringing copies of textbooks the copyrightsof which were vested in the complainant. He was sentenced to a fine of $1,500 on each of the 3 charges. He appealed on the ground that the legislation had not provided for any fine orpunishment for the possession of a duplicating contrivance. Chang Min Tat J, in allowing the appeal held, with regret, thatParliament had failed to provide a punishment for the offence in question. He accordingly upheld the conviction but set aside the sentence. We must with like regret follow suit. Here, Parliament has said that the appellant shall not, by reason of his age, receive the capital punishment but has made no valid law conferring power upon the courts to impose some other sentence. We would have been inclined to impose life imprisonment in this case but unfortunately our written law does not contain any equipollent provision that exists under Jamaican law. 17. For the reasons already given the appeal against conviction isdismissed. However, the sentence passed is set aside. We will now hear arguments on the consequential orders that we should make on this appeal. 18. In conclusion we must say that this is a tragic case. Liyangeand Hinds have been in the law reports since 1967 and 1976 respectively. Both have been applied by our courts long before the Child Act was drafted. It is unfortunate that those charged with the drafting of the Child Act did not pay proper attention to the decided cases. If they had done so, the incongruent and unfortunate circumstances now before this Court may well have been avoided. But as judges we have to apply the law as it exists. We simply have no choice whatever in the matter. Dated this 12th day of July 2007. Gopal Sri Ram Judge, Court of Appeal Malaysia Counsel for the appellant: Karpal Singh (Ramkarpal Singhwith him) Solicitors for the appellant: Tetuan Karpal Singh & Co. Counsel for the respondent: Yaacob Sam (Mangai with him) Solicitors for the respondent: Peguam Negara Malaysia.