No wisdom in our judiciary – not even common sense

The Federal Court’s ruling on 25 February 2010 that it had no jurisdiction to review its own decision is utter nonsense.

By P. Ramakrishnan (Aliran President)

The three judges who came to this conclusion on Rule 137 of the Federal Court Rule - Zulkefli Ahmad Makinuddin, Mohd Ghazali Mohd Yusoff and Heliliah Mohd Yusof - were referred to by the former Court of Appeal judge, N H Chan, as “incompetent judges – perhaps they were clowns as their statements were laughable.”

N H Chan has brilliantly summed up the reaction of Malaysians to this atrocious judgment by stating, “We, the ordinary citizens of this country, are stunned by the ignorance of our judges of the highest court in the land…”

In a very scathing indictment, without mincing his words, he puts it bluntly, “It is only when we have fools on the bench that I can point out that what they have decided is not the law.”

When these personages garbed in judicial robes deliver judgments that are so bereft of wisdom and common sense, we wonder what is the purpose in turning to the courts for justice. Do we indeed need these courts when judges don't deliver justice and “do not know justice from injustice.”

The bone of contention in this issue is Rule 137. Let’s take a good look at Rule 137 of the Federal Court to understand what it is all about. In simple, clear terms, Rule 137 of the Federal Court states:

“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.”

I’m not schooled in the law but it seems plain enough to me that this rule does not in any way limit “the inherent powers of the Court.” In other words, it can “hear any application or make any order as may be necessary to prevent injustice or an abuse of the process of the Court”.

It is very clear that this rule empowers the Federal Court to prevent an injustice whenever it occurs. It also has authority to prevent an abuse of the process of the Court when certain elements resort to the court to legitimise an illegal act or fraud.

This empowering rule allows the Federal Court to prevent injustice and the abuse of the judicial process when certain judges discard their oath of office and deliver judgments that offend and betray the rule of law.

We have witnessed how this court process was abused in the case of the Perak State Assembly crisis, aided and abetted by judges who seemingly come across as people who have little understanding of the law; as people who are not capable of applying the law as it stands and as people who don't care for the law.

The judges were so blatant and biased in their decision that N H Chan has rightly put it, “The so-called Perak crisis has brought out a host of cases that showed that the judges gave the impression that they were one-sided. The perception of the people is that they sided with the BN government.”

Now, this decision that disappointed thinking Malaysians cannot be reviewed because the recent Federal Court decision had foolishly ousted its jurisdiction. It is, perhaps, done deliberately so that the injustice perpetrated by these judges cannot be corrected in the future and they cannot be exposed as shallow minds sitting on judicial benches. According to N H Chan, these judges are “such lowly individuals (who) should never be allowed to sit on the seat of Justice...to be judges at all. And yet there are so many of them in the judiciary today ever since the rot began”.

When the ignorance of these judges was so gross and their decision so perverse, befuddled Malaysians are wondering why the Bar Council had nothing to say with regard to this ridiculous situation. Shouldn’t justice be their sole concern? Doesn’t this flagrant injustice as perpetrated by the Federal Court mean anything to them? In the interest of their profession, aren’t they expected to be troubled by this decision?

Why then has the Bar Council not commented or taken a stand on this issue?

We cannot allow this scandalous situation to continue or persist. The Bar Council is enjoined by the Legal Profession Act 1976 under section 42(a) “to uphold the cause of justice without regard to its own interests or that of its members, uninfluenced by fear or favour”. It is a national obligation that has been entrusted to the Bar Council by an act of Parliament “to uphold the cause of justice.” It must remain true and faithful to this sacred responsibility.

Aliran would like to call upon the Bar Council to boycott the courts one day in a month, every month, until this decision is rescinded or reversed so that the avenue to seek justice is not foreclosed.

The Bar Council may also want to consider boycotting the Federal Court until this matter is righted. This move is not without precedent. In 1988, the Bar Council adopted a resolution to boycott the Supreme Court and the Lord President, Tun Hamid Omar, for the abysmal role he played in the ouster of Tun Salleh Abas to weaken the judiciary and strengthen the hand of Dr Mahathir Mohamad, the politician.

The nation looks up to the Bar Council to make a stand at its AGM tomorrow. Will it take up the challenge and live up to our expectations?

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