A Sense Of Injustice by NH Chan [Former Judge in Malaysia]

The two rules which make up the essentials of natural justice, and the reason why without natural justice any decision made by any judge is unjust, is because the aggrieved party’s constitutional right had been infringed.

This is how it was put in the well known case of Kanda v Government of Malaysia [1962] AC 322, PC, by Lord Denning:

“… The rule against bias is one thing. The right to be heard is another. Those two rules are the essential characteristics of what is called natural justice. They are the twin pillars supporting it. The Romans put them in the two maxims: Nemo judex in causa sua, and Audi alteram partem. They have recently been put in the two words, Impartiality and Fainess. But they are separate concepts and are governed by separate considerations. In the present case inspector Kanda complained of a breach of the second. He said that his constitutional right had been infringed. He had been dismissed without being given a reasonable hearing.”
I set out below the reasons – the ratio decidendi (in Latin) – for the dismissal of all the election petitions lodged by the opposition in Perak where in every case, without a single exception, either one or both of the twin pillars of natural justice were lacking. Those judges have exhibited an absence of impartiality or of fairness. In some cases even both impartiality and fairness were breached.

I shall start with the worst cases in Perak where the election judge hearing the case had acted against both principles of natural justice. Those judges had exhibited an absence of both impartiality and fairness. By such misbehaviour such judges have shown to our disgust that they were acting unjustly.

These election judges were the root of injustice in the administration of justice which in turn would lead the people to be highly suspicious of the incumbent government’s slim majority in the state assembly of Perak

Abdul Rahman Sebli J. was one of those recalcitrant judges. He heard the election petitions of the constituencies of Lubok Merbau 1 and 2, Selama and Tapah.

But first, I must refer to the Interpretation Acts 1948 and 1967 for the meaning of the words which are relevant to the present discussion. Section 4(3) of the Acts states:

“(3) Words and expressions in the singular include the plural, and words and expressions in the plural include the singular.”
With the above meaning of the words in mind, I can now refer to rule 9 of the Election Petition Rules 1954:

“9. With the petition the petitioner or petitioners shall leave at the office of the Registrar a writing signed by him or their advocate … , and … giving an address within Malaysia at which notices may be left. Every such writing shall be stamped with the duty payable thereon under the law for the time being in force.”
And rule 34:

“34. An advocate shall, immediately upon his appointment as such, leave written notice thereof at the office of the Registrar.”
The election judge in his written judgment, said:

“It is the respondents’ contention that the petition ought to be struck out in limine without going through a full trial as it was filed by a firm of advocates and solicitors … and not by an advocate as required by the Rules. Among the various authorities cited in support of the argument is my decision in Abdul Karim bin Abdul Rasid v Dato’ Siti Salmah binti Mat Sujak & 2 Ors [2013] 1 LNS 492. Since the factual matrix of the present case is identical with that of Abdul Karim bin Abdul Rasid, I see no reason to depart from my decision in that case.”
[LB: The decision in Abdul Karim bin Abdul Rasid from CLJ Online is here [PDF]: Abdul Karim Abdul Rasid – Lubok Merbau Election Petition]

The judge, according to him, was constrained to uphold the preliminary objection raised by the respondents and struck out the petition at the outset – for that is what in limine means in Latin – “on the ground of non compliance with rule 9 and rule 34 of the Election Petition Rules 1954“; these were the actual words used by the judge in his written judgment.

Ignoramuses

This judge must be completely ignorant of the law. In fact the other election judges who had heard the election petitions in Perak were just as ignorant because they had also given short shrift to all the election petitions they heard using the same reasons as this judge.

The Interpretation Acts 1948 and 1967, s. 4(3) says: “Words and expressions in the singular include the plural, and words and expressions in the plural include the singular“. That being the law, how then can anyone still say that rules 9 and 34 of the Election Petition Rules require a party in an election petition to be represented by a single advocate and solicitor only or by a firm of a single advocate and solicitor?

The petitioners’ only sin was to employ more than one lawyer to represent them. And for that they were all denied access to justice. The guarantee in Article 8(1) of our Constitution that “All persons are equal before the law and entitled to the equal protection of the law” was completely ignored by the judges. To such judges, those words in the Constitution were empty words.

Now that you have read this article you would know the law better than our ignorant judges, so that you can now judge the quality of all those judges who had heard the election petitions in Perak. How could it be, we may ask, that we are the only country, out of all the other common law countries, in the entire world that has so many incompetent judges? There must be something wrong in our system for the appointment of judges. There was a time when judges were appointed from the cream of the legal profession. Sadly those days were gone.

Conclusion

What can be done to stop all these unjust decisions being handed down by recalcitrant judges? The only way is to use the power of your vote to rid the country of the bad apples. If the opposition parties win the election in the next general election, all the unjust judges and their unjust decisions could be dealt with by a simple Act of Parliament. Lord Denning in his book Landmarks in the Law, Butterworths, London, 1984, pp 119-121, told us this story:

“Now in the Taff Vale case the railwaymen’s union called a strike at the railway station at Cardiff. The men left work and set up peaceful pickets so as to persuade others not to go to work. The trains could not run, and tbe company lost money. The railway were advised to bring an action against the union itself, seeking an injunction and damages. The Court of Appeal threw out the action. But the House of Lords, in a startling judgment, overruled the Court of Appeal. They issued an interlocutory injunction against the trade union itself, restraining it from setting up the pickets, and said that the railway company could recover damages which could be enforced against trade union funds. Later, at the trial itself, the damages were assessed at £23,000 and that sum was paid out of the funds of the trade union. £23,000 in 1900. What would that be now?
In the eyes of trade unions, that was an outrageous decision. It meant that the railway company could take all the funds subscribed by the members so as to meet the damages. It meant that, in future, a trade union could never call a strike, else it would be in peril of losing all its funds. It meant virtually the end of trade unions. …
That case had immense political consequences. At the general election of 1906 there came into being a new political party. It was the Labour party. They ran a host of candidates themselves. They pledged complete immunity for trade unions. Many of the Liberal candidates gave the same pledge. The result of the general election was like an earthquake. Liberals had 397 seats. The new Labour party had 50 seats. The Conservatives only 157. It was a sweeping victory for the trade unions.
Parliament immediately passed the Trade Disputes Act 1906. It is probably the most important Act ever put into the Satute Book. It reversed all the judicial decisions against trade unions. The Taff Vale case was overruled. No trade union could thereafter be sued for damages for any wrongs done by its members. Its funds were unassailable.”
We can do the same thing in this country. We can pass a law to right the wrongs committed by our errant judges. We could even have the exorbitant damages, if paid, returned to the affected election petitioners with interest plus damages for the pain that they had endured. But, before all these could take place, we must vote for the opposition to win the next general election. Let us put our shoulders to the task

– See more at: http://www.loyarburok.com/2013/12/16/sense-injustice/#sthash.d1wa0uzX.dpuf

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