AG’s appointment: Lessons learnt — Gurdial Singh Nijar

Source: The Sun Daily

BY GURDIAL SINGH NIJAR
(Deputy President, HAKAM)

AS THE saying goes, the greater the storm, the brighter the rainbow. Smiling colours beamed when the Yang di-Pertuan Agong finally consented to the appointment of lawyer Tommy Thomas as the 10th attorney-general of Malaysia/Federation of Malaya. After a cliffhanger thriller to the finish – as royalty prevaricated in the face of the prime minister’s insistence that the government’s choice was not negotiable.

The short announcement on behalf of His Majesty alluded to the King’s “disappointment and worry about inaccurate and negative media reports of late which could threaten peace and harmony in the country”. The country – barely over the euphoria of a change of government – heaved a welcome sigh of relief. A potential constitutional crisis saved from the brink.

Are there lessons to be drawn from this episode? Several, I believe.

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The election money game — Gurdial Singh Nijar

Source: The Sun Daily

BY GURDIAL SINGH NIJAR
(Deputy President, HAKAM)

THE election money game is on! Promises of goodies if a party is voted in, such as a long overdue road or a kampung bridge or the abolition of tolls, which are often accompanied by open threats that all this will be denied if the votes do not materialise.

This in flagrant concealment of the stark truth that, in any event, the money and development will come from the public taxpayer – not the personal coffers of the party or its leader.

There is a law called the Election Offences Act. It prescribes what can or cannot be done. The Election Commission (EC) oversees the election to make sure that all is fair and legal. No undue advantage. No bribery. No undue influence. No use of government machinery. No money spent beyond the permitted amount – RM100,000 for a state seat; and RM200,000 for a parliamentary seat.

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Not in the public interest — Gurdial Singh Nijar

Source: The Sun Daily

BY GURDIAL SINGH NIJAR
(Deputy President, HAKAM)

A CRYPTICALLY-TITLED Anti-Fake News law is about to be enacted shortly if passed by Parliament. The outcry against it stems from its overbroad scope.

First, it goes beyond “news”. Its coverage is extraordinarily overreaching. It covers everything spoken, written, drawn, audio and visual – and the catch-all: “in any other form”. It covers words and ideas, too. It extends to publications and reproductions; and anything in digital or electronic form and replications of these. Every information is roped in – regardless of its scientific, literary or artistic value. Nothing is left out. Read more

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