CJ’s appointment challenged — Gurdial Singh Nijar

Source: The Sun Daily

BY GURDIAL SINGH NIJAR
(Deputy President, HAKAM)

LAST week a larger than normal number of Federal Court judges (seven) heard a case unprecedented in Malaysian legal history. The Malaysian Bar challenging the constitutional validity of the appointment of the chief justice (CJ) and the president of the Court of Appeal (PCA).

The Bar contended as follows. The Constitution explicitly states that the CJ’s term of office is to be 66 years plus six months. After that he must retire. Only a person appointed by the CJ as an additional judge can hold office beyond this prescribed period. Such appointment is expressly provided for in the Constitution. There is no extension allowed for the CJ’s term. So his term ends in accord with the constitutionally-prescribed tenure period.

But, argued the Bar, the CJ’s term was extended through a rather convoluted and unconstitutional process.

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Election Commission and the courts — Gurdial Singh Nijar

Source: The Sun Daily

BY GURDIAL SINGH NIJAR
(Deputy President, HAKAM)

ON March 2 the Court of Appeal dismissed an application by the Selangor government to stay all proceedings of the Election Commission (EC) until its appeal on the constitutionality of the re-delineation exercise was heard in some three weeks’ time.

The Selangor government had filed for judicial review of the EC’s redrawing of boundaries exercise because it said:
» The EC had not followed the principles on which this could be done under the (Federal) Constitution;
» In carrying out the exercise, the EC had not complied with the mandatory procedure for the process as prescribed by the constitution;
» It had used a flawed electoral roll; and
» There were names of voters on the roll with no corresponding addresses.

All rather serious allegations which could render the EC’s exercise fatally unconstitutional. Read more

Review of the Indira Gandhi decision? — Gurdial Singh Nijar

Source: The Sun Daily

BY GURDIAL SINGH NIJAR
(Deputy President, HAKAM)

HARDLY is the ink dry on the Federal Court’s Indira Gandhi decision, a group of NGOs have announced that they will file an application for the Federal Court to review its decision. The public seems intrigued. After all, it was a final decision of the highest court of the land. What is this power of review? When can it be exercised?

Does the power exist?

Yes, the Federal Court does have an inherent power to review its own decision. It has a wide discretion to do so. But it is an exceptional power which is sparingly exercised. Read more

Answered: Who has the power in conversion cases — Gurdial Singh Nijar

Source: The Sun Online

BY GURDIAL SINGH NIJAR
(Deputy President, HAKAM)

ONCE ever so rarely emerges a court decision that will have a reverberating effect far beyond its own facts and parties to the case.

I speak of yesterday’s decision of the Federal Court in the Indira Gandhi case.

Before the Federal Court were two important questions: (1) who has authority to decide on matters of conversion of religion – the syariah courts or the civil courts where an issue arises involving its constitutional or statutory interpretation?

(2) In such conversion cases can one parent (without the consent of the other) have the final say? Read more

Many questions over pastor’s abduction — Gurdial Singh Nijar

Source: The Sun Daily

BY GURDIAL SINGH NIJAR
(Deputy President, HAKAM)

A LETTER from the IGP triggered the derailing of the Suhakam Inquiry into the abduction of Pastor Koh just when it was about to commence its final three days’ hearing. Two crucial witnesses were required to take the stand: a senior officer from the Special Branch unit of the police; and a technical officer to explain the malfunctioning of the critical CCTV cameras along the alleged abduction route.

The IGP’s letter to Suhakam stated that a person had been charged the day before for the kidnapping and abduction of the pastor. Together with seven others at large. All very well it appeared until it was revealed that the person charged was a young Chinese part-time driver. The same person that the police had charged in an ongoing trial for trying to extort money from the family by alleging (falsely) that he had information on the missing pastor.

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Banned books poser — Gurdial Singh Nijar

Source: The Sun Daily

BY GURDIAL SINGH NIJAR
(Deputy President, HAKAM)

A FRIEND rang me over a strange request. She said a book she bought some time ago has since then been banned. Declared an “undesirable publication” by the home minister. Now it is a crime to possess any banned book.

What do I do with this book? – the evidence of the crime, she asked.

My reaction: burn it in your garden. But then this could expose her to a charge under the law that prohibits open burning.

She could set it alight on the stove. Oh no, she said, the house could incinerate as the flames devour its 247 pages; and the insurance company will repudiate the claim for this wilful arson.

How about throwing the book in the recycle bin? But what if some passer-by retrieves it? He or she could be charged for possession of a banned book. And my friend is traced as the disposer of the book. She could then be charged as an accomplice. Under our law an accomplice faces the same punishment as the perpetrator. Read more

Keep online speech free — Gurdial Singh Nijar

Source: The Sun Daily

BY GURDIAL SINGH NIJAR
(Deputy President, HAKAM)

FORTY-SIX people are facing possible imprisonment and fines for sending online messaging to others. Through tweets, SMS, WhatsApp, blogs and the like. Cartoonists, politicians, activists and the like have all been hauled up.

This is under section 233(1)(a) of the Communications and Multimedia Act 1998. It is a crime to send a public electronic message that is obscene, indecent, false, menacing or offensive with intent to annoy, abuse, threaten or harass another person. The offender can be jailed for up to one year or fined RM50,000 or both; as well as a further fine of RM1,000 for every day the offence is continued after conviction.

How really can you measure whether or not a message is annoying or menacing? And who decides? These terms are not defined. Nor any criteria spelt out to guide people.

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Can public authorities sue for defamation? — Gurdial Singh Nijar

Source: The Sun Daily

BY GURDIAL SINGH NIJAR
(Deputy President, HAKAM)

THE Malaysian Anti-Corruption Commission (MACC) recently threatened to take action against the chief minister of Penang. It complained that he had defamed the institution by alleging that it was wrong to charge a state minister.

MACC is a public institution carrying out public functions. Its head is appointed by the King on the advice of the prime minister – which essentially means the government. He holds office at the pleasure of the King – which under our constitutional structure again means the government via the prime minister.

This raises an interesting question. Can a public institution sue for defamation when it is criticised, however harshly?

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Washing dirty linen – an unqualified right?– Gurdial Singh Nijar

Source: The Sun Daily

BY GURDIAL SINGH NIJAR
(Deputy President, HAKAM)

AS has become vogue of late in Malaysia, a simple event can become ugly and hotly contested. As in the case of a lone “Muslim-only” launderette in my home town of Muar.

Former Chief Justice Abdul Hamid Mohamad (and my former university mate) wrote in the official PAS publication that Muslim-only launderettes should be permitted. He knew of no law in Malaysia that says it is illegal to operate them. He fortified his contention thus:

“A launderette owner is an individual and not a government entity, and Article 8 of the Federal Constitution on equality cannot apply to an individual. It only applies to the government … as a private businessman, a launderette owner had the freedom to choose who he wanted to do business with.

“All businesses want to earn profits. If the owner thinks that his business would do better by targeting Muslims, he should be free to do so … “

Well and good. But, with respect, this is way off the point. The sting lies in the justification for the move. It is not really about equality under the constitution. The sign at the launderette said it was closed off to non-Muslims on the ground of “kesucian” – meaning purity. So, first, it is based on religion. Second, it implies that non-Muslims are impure. Read more