Gurdial Singh Nijar

Lockdown, lock-in or what? – Law Speak

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From the Sundaily

CONFUSION reigns following the dramatic announcement by the prime minister on Monday. Is it a lockdown – meaning people can’t leave their homes? Like a curfew where police will be on the streets to bar people moving on the streets. Or haul up anyone outside their homes.

The object is clear. To limit the movement of people in public places. Essentially to prevent people mixing with others.

Hence all businesses are to close. All government buildings and private premises are to shut down. Schools and universities must shutter their doors.

Travel out of the country is prohibited. And travel into the country strictly regulated. Malaysians who commute daily to Singapore are adversely affected by the travel ban.

There is also a complete ban of gatherings and meetings – including religious congregations.

These measures are introduced under the Prevention and Control of Infectious Diseases Act 1988. And under the Police Act 1967 – which allows the deployment of the police to oversee the implementation and adherence of these measures.

The prime minister has acted under Section 11 of the Infectious Diseases Act to declare the whole of Malaysia as an infected area. This is on the basis that the minister is satisfied that there is an outbreak of an infectious disease in the country or the country is threatened with an epidemic of an infectious disease. This allows him to prescribe the necessary measures to control or prevent the spread of the infectious disease.

The worry about the spread appears real. As at March 8 there were fewer than 100 reported cases of infection of the corona virus. As of Tuesday it had spiked to 673 cases with two deaths, one a 34-year-old and the other a 60-year-old Sarawakian, who had an underlying chronic illness.

These figures may not represent the true state of infections. It is not known how many fail to report; either for fear of being quarantined or because they dismiss the symptoms. The latter understandable as the symptoms mimic other infections such as flu and the like.

The measures require Malaysians returning from overseas to be screened and to self-quarantine for 14 days after arrival. And a complete ban of tourists and foreign visitors. These measures are imposed under Section 6 of the Act “to prevent the introduction of any infectious disease into Malaysia from an infected area”.

To ameliorate the wide reach of these measures, one is allowed to move to get your food and medical supplies. Restaurants can open but only for takeaways (markets, grocery stores, pharmacies and hospitals remain open); also banks and financial institutions will remain open. Premises of public utilities providers – water, electricity, telcos, post and the like – will also remain open.

That’s why this order cannot be categorised as a lockdown or a curfew – as has been implemented in China, Italy and Spain. It is best described as a restriction of movement order.

All other movements are strictly prohibited. So offices cannot be partially shuttered – with a skeleton staff. Nor can business premises such as restaurants operate to provide online services. Hotels too are business premises and must close their doors. Religious places are also off limits to their routine mass services.

Any breach and the Act provides for penalties – of fines and jail terms. That’s where the deployment of the police under the Police Act kicks in.

We are of course not used to such drastic measures. And wonder how they will be enforced. One can easily avoid prosecution if caught travelling by arguing that the movement is to one of these permitted outlets.

So these measures should be viewed as encouraging people to restrict their movements to the bare essentials. And be implemented in a facilitative rather than punitive way. After all, it is only for a test 14-day period.

This will also be a steep learning curve for the public to realise how easily the infection can be spread; and to get them on board to ensure that the infection is not carelessly spread to other unsuspecting innocents. Especially the elderly and the babies. For whom it could be fatal, as the statistics in other countries show.

The objective, said the Ministry of Health, is to break the chain of transmission of Covid-19 among individuals and communities. And to highlight to the public that Covid-19 prevention and control measures must be taken seriously.

We must begin to recognise that each and everyone of us has a critical role to play in curbing this terrible new disease involving a little sacrifice and some inconvenience.

Gurdial, a former law professor, now practises law and is the President of HAKAM.  

Challenging the PM’s appointment – Law Speak

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From the Sundaily

TWO critical questions seem to be troubling the public. First, can the appointment of the prime minister by the king be challenged? Second, does such a challenge amount to disrespect for the king and the institution of the monarchy?

Our courts have answered both these questions. Yes, to the first. No, to the second. Let me elaborate.

The Sabah case: Tun Datu Hj Mustapha bin Harun v Tun Datuk Hj Mohamed Adnan and Datuk Joseph Pairin Kitingan No 2

In 1985 the court intervened in a constitutional crisis in Sabah and quashed the appointment of a chief minister. Pairin, whose party had just won the state elections, was expected to be appointed chief minister by the Yang di-Pertua Negeri (YDPN) – equivalent of the sultan of a state; or king in the federal context.

However, at 3.40am on the night the election results were announced, the leaders of two other parties visited the residence of the YDPN and persuaded him to appoint Tun Mustapha as chief minister on the basis that they commanded 22 seats; and with the appointment of an additional six members, who had to be nominated by the YDPN, they would have an overall majority in the state assembly. The YDPN swore in Tun Mustapha as the chief minister at 2.30pm.

Three hours later, the YDPN revoked Tun Mustapha’s appointment. At 8pm he swore in Pairin as chief minister.

Mustapha challenged the validity of his revocation as well as Pairin’s appointment, seeking declarations that he had been validly appointed and was still the chief minister.

Pairin and the YDPN objected – arguing that the court had no jurisdiction because the case concerned the manner of exercise of discretion by the head of state and raised political questions which should be, and had been, dealt with by the legislature. In the interim Pairin had secured a vote of confidence in the state assembly.

The High Court held that the court had jurisdiction. The case involved construction of the federal and state constitutions, and consideration of legal principles; and the legal issues of conspiracy, misrepresentation, fraud and duress – all of which, ruled the court, fall within its jurisdiction and function.

It was not a question of how the YDPN had exercised his discretion – which the court had no jurisdiction to decide.

The Supreme Court upheld the High Court decision.

The Perak case: Datuk Nizar Jamaluddin v Datuk Seri Zambry Abdul Kadir

In 2009, Perak Sultan Raja Azlan Shah refused to dissolve the state assembly upon the request by the then mentri besar Nizar Jamaluddin. Instead of deferring to the state assembly to determine who had the confidence of the majority, the sultan opted to interview the members of the state assembly. His Majesty concluded that Nizar had lost the confidence of a majority of the assembly and asked for his resignation. Nizar was thus ousted without any vote in the assembly.

Nizar brought an action in court to challenge the appointment by the sultan. The High Court decided in Nizar’s favour; but the Court of Appeal, and later the Federal Court, upheld the appointment.

The courts read into the Perak Constitution a conventional power for the sultan to declare the office of MB vacant, without a vote in the assembly. The decision broke “new ground in allowing the ruler considerable latitude, which is not apparent in the constitutional text or in general understandings of constitutional conventions, to reach his own judgment as to the issue of the legislature’s continued confidence in the Head of Government” (Andrew Harding, The Constitution of Malaysia: A Contextual Analysis).

Note that all state constitutions have identical provisions empowering the sultan/YDPN to appoint state MBs. The king also acts under a similar provision in the Federal Constitution: Article 43(2)(a).

This Federal Court decision was approved last year when the High Court rejected Tan Sri Musa Aman’s challenge of the appointment of Datuk Seri Shafie Apdal as chief minister by the YDPN.

Conclusion

Through these decisions, our highest court has established the undoubted right of litigants to challenge the appointment of the prime minister or mentri besar by the ruler. To say that this will denigrate the institution of the monarchy is to misunderstand the power of the courts to decide issues that are legal and constitutional in nature. Else the rule of law, an integral pillar of the basic structure of the Federal Constitution, will be undermined.

One final comment. Courts cannot decide questions that are political in nature. Indeed, most of these cases have a distinct political flavour. Nonetheless, as declared by the UK Supreme Court recently “… although the courts cannot decide political questions, the fact that a legal dispute … arises from a matter of political controversy, has never been sufficient reason for the courts to refuse to consider it. … Many if not most of the constitutional cases in our legal history have been concerned with politics in that sense”: Lady Hale, R (Miller) v The Prime Minister (2019) UKSC 41.

Gurdial, a former law professor, now practises law and President of the National Human Rights Society (HAKAM). 

Lawyers challenge Singapore attempt to use ‘fake news’ law over prison killings claim

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From Free Malaysia Today

Lawyers for Liberty adviser N Surendran, flanked by Gurdial Singh Nijar and LFL director Melissa Sasidaran, talking to reporters. Pic from FMT.

Lawyers for Liberty (LFL) is seeking to declare as illegal an order issued by Singapore’s home minister, under its anti-fake news law, over claims by the rights group on brutal extra-legal execution methods carried out at the Changi Prison.

In a suit filed at the High Court registry today, LFL is also seeking a court pronouncement that the minister, or anyone acting under his authority, could not act to enforce any provision of the Protection from Online Falsehoods and Manipulation Act (Pofma).

“A correction direction issued by Singapore under Pofma is illegal, oppressive and an attempt to silence Malaysian citizens from exercising their right to free speech in Malaysia,” they said.

Apart from LFL, the other plaintiffs are its adviser, N Surendran, and director Melissa Sasidaran.

Minister K Shanmugam is named as the defendant.

The swift action came about after LFL claimed it had received evidence of such methods by prison guards in the event the hanging procedure fails during execution.

Surendran, who is also a lawyer, alleged that if the rope broke during a hanging, a prison officer would pull the rope that was around the neck of the prisoner towards him.

“Meanwhile, another prison officer will apply pressure by pulling the body in the opposite direction.” he had said.

Saying the details were shared by a former executioner at Changi Prison, Surendran said prison guards would kick the convict’s back “with great force in order to break it”, while ensuring there would be no tell-tale marks in case there was an autopsy.

Singapore said the claims were “untrue, baseless and preposterous allegations”, adding that all judicial executions in the state were carried out in strict compliance with the law.

It also instructed the Pofma office to issue a “correction direction” against LFL’s statement on its website.

Meanwhile, lawyer Gurdial Singh Nijar said this was an unusual action against Singapore as the penalty for violating Pofma carried a jail term.

“They can issue a warrant of arrest against Surendran and Melissa to face charges there,” he said.

Gurdial, who is taking up the case with Ambiga Sreenevasan, said the minister could rely on sovereign immunity in not responding to the suit but, at the same time, he had encroached into fundamental rights of Malaysian citizens.

“You cannot extend your laws against the citizens of another nation,” Gurdial said, adding that he hoped the minister would contest the action in the Malaysian court.

Meanwhile, Ambiga said it was imperative for the plaintiffs to file this action against the minister as the new Malaysian government has repealed its Anti-Fake News Act.

Meanwhile, in an affidavit in support of the action, the plaintiffs said LFL’s statement issued on Jan 16 was in the public interest as there were many Malaysians facing the death penalty in Singapore.

They said the minister issued an order to do a correction and failure to do so was an offence under Pofma, which carried a fine of up to S$20,000 or a maximum jail sentence of 12 months for individuals.

They said LFL had issued a press statement three days ago dismissing the minister’s stand.

Transparency the key to trust

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From the Sundaily

WE the people need to have faith in the government. Believing in what it says and does. And its promises for the future. For this to happen, the government must disclose its plans and policies in a way that is easily understood by the people. And then engage them in a participatory process, seeking their feedback and shaping its policies and plans to accord with the wishes of society. This requires it to be transparent to help strengthen citizens’ trust in policymakers and thus enhance the accountability of public administrations.

In short, transparency is the key to citizens’ trust. This appears to be sadly lacking in the New Malaysia as pointed out at a forum organised by the National Human Rights Society (Hakam) last weekend. It centred around the failure of the government to release the report of the Institutional Reform Committee (IRC). Recall that the reform agenda was central in PH’s election campaign: reforms to ensure that public institutions will be insulated in the future from being subverted. Prime Minister Tun Dr Mahathir Mohamad in his recent Che Det blog posting acknowledged as much. That PH took over from a kleptocratic government, which among other ills, had “destroyed its finances, undermined its administrative agencies and abused the laws … and generally undermined the moral of the people”.

What is now taking the wind out of the sails of reform is the refusal of the government to release the reports not just of IRC but as well that of its superior body – the Council of Eminent Persons. The people participated in these processes with an unrestrained gush of passion and enthusiasm. And the IRC’s panel worked tirelessly to produce its recommendations.

The expectation was that this new participatory process would form the new ethos of good governance. Resonating with the caution delivered by Lord Bingham head of the UK judiciary in a 2003 court decision (R v Shayler): “There can be no assurance that government is carried out for the people unless the facts are made known, the issues publicly ventilated. Experience shows that publicity is a powerful disinfectant”.

You can hardly blame the electorate for handing a litany of by-election defeats to PH and its allies. An unconditional declaration of its disillusionment. And, charitably, the expectation that the government will heed the signals and return to the path of delivering on its promises with public involvement. Promises which roused the electorate to sweep it into power.

Let’s survey the “disenchantment landscape”. First, the laws either enacted or employed by the previous government in its twilight years to suppress the people – laws like Sosma and the Sedition Act.

All are very much alive and kicking under the new regime. I remain convinced that the IRC made concrete and incredibly useful recommendations for reform, which the government has kept under wraps. The peoples’ disenchantment was reflected in a well-patronised vigil last Saturday against the continued use of these laws.

Then there is a cheerful and optimistic forecast of the economy. When the reality may not be quite that – with ministers telling us that all is hunky-dory, as a columnist wrote in the Sunday Star. The cost of living is the biggest problem. On the ground, SMEs, retailers and hawkers will tell you their business is bad, by one account. The cost of doing business is high, they complain. There have yet to be solutions proffered, discussed and implemented that inspire confidence in the rakyat that all will turn out for the better sometime soon.

Then the lack of verve and commitment to curb strident voices spewing hatred that spawns racial disunity and religious animosity. Racial and religious disunity is at an all-time high.

An opposition leader recently spoke of ministers talking without a clear policy and considerations of the viability of the projects they propose. And that Cabinet ministers leave meetings saying they do not agree with some decisions. While there may be little truth in these allegations, yet these views gain currency when the people are delinked from policy formulation and implementation.

Such is the frustration that it led Ambiga, a member of the IRC, to announce at Hakam’s forum that people will take to the streets if the promised reforms fail to materialise timeously.

The message is clear. Gain the trust through transparency. The quality of transparency, like “mercy” in Shakespeare’s Merchant of Venice “… is not strained. It droppeth as a gentle rain from heaven upon the place beneath. It is twice blessed. It blesseth him that gives and him that takes”. So it benefits the government and the governed.

Trust and accountability go hand in hand. Trust in political institutions is a key element of representative democracies. Trust in the rule of law is also the basis for democratic participation of citizens. All clear indications that trust is an essential condition of good governance.

Dato’ Dr. Gurdial Singh Nijar is the President of HAKAM.

Threat by counter groups – Law Speak

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From the Sun Daily

THE dialogue on the introduction of the jawi script in schools was banned by a last-minute court order secured by the police. The reason given was that it would cause chaos. A large number of Malay groups had threatened to scuttle the dialogue congress; convened essentially by Chinese educationists with a smattering of others including a representative from the Ministry of Education.

Earlier the prime minister had warned of the potential for reprisals by other groups against the congress.

All well and good. Law and order is everybody’s concern. And a valid consideration in curtailing freedoms guaranteed by the Federal Constitution. Especially when activities impinge on the delicate race and religion issues.

But pause awhile. The basis is that one ethnic group demands that this issue not be discussed. Can a constitutional right that is fundamentally-guaranteed be thus thwarted?

Admittedly, the constitution allows the curtailment of the right to free speech and assembly on grounds of public order and national security. This present ban at the behest of the police implies that (a) the police with its vast panoply of powers is unable to maintain law and order; and threats by others; and (b) the government is powerless to effectively staunch others from disrupting lawful activities.

The police are eminently placed in a worst-case scenario to impose conditions for any assembly to be held. This would relate to time, manner and place. In other words restrictions but not outright ban. Indeed the Peaceful Assembly Act 2012 allows the imposition of such restrictions.

Significantly, if there is a proposal to have a “counter assembly” the OCPD has the power under the Act “if it is evident that the organisation of the counter assembly will cause conflict between the participants of the assemblies” – to get that assembly organised at another date, time or place. Thus the right of all to assemble peacefully is guaranteed in a balanced way.

I recall that a group sought to injunct one Bersih rally on its eve alleging potential disorder by counter assemblies. The High Court threw out the application. Reminiscent of Lord Denning’s exhortation that the courts “should not interfere by interlocutory injunction with the right to demonstrate and to protest any more than they interfere with the right of free speech; provided that everything is done peaceably and in good order”. And “the right to demonstrate and the right to protest on matters of public concern … are rights which it is in the public interest that individuals should possess” and that “history is full of warnings against suppression of these rights” Hubbard v Pitt (1967).

Now, the convening of the congress by all accounts was done legally in complete compliance with the law. There is no suggestion that it intended to break the law. It was a mere dialogue – to discuss, clarify and explain the issues. No threat to the peace. The threat came from others who assumed to themselves the right to prevent others from assembling together.

Clearly, to prevent a lawful assembly from taking place on the basis that it will be met by an unlawful opposition is to give in to lawlessness. Note that the counter group was not given the go-ahead to carry out their demonstrations. Surely, as a general rule, the correct approach must be for the law enforcement agencies to deal with those who are threatening to break the law rather than to act against those who are seeking to comply with it. “If danger arises from the exercise of lawful rights resulting in a breach of the peace, the remedy is the presence of sufficient force to prevent the result, not the legal condemnation of those who would exercise those rights”. R v Londonderry (1861).

Dealing with a similar threat by a counter group, the revered English judge Lord Denning, speaking for the English Court of Appeal, said:

“The evidence is that if there is any trouble it will not be at the meeting at all. If it does occur, it will be outside caused by opponents … Their members may threaten or assault the members of the National Front; or try to stop their meeting. It would then be the interrupters who would be the destroyers of freedom of speech. They cannot be allowed to disrupt the meeting by mass pickets, or by violent demonstrations, and the like. The police, will, I hope, be present in force to prevent such disruptions”. Verrall v Great Yarmouth BC (1980).

More fundamental issues arise. The ban on this ground engenders, if not exacerbates, ethnic tensions. Any concerted group can prevent the pursuit of legal activity by others, especially minorities. By lodging an avalanche of police reports and contriving a law-and-order threat. Then the very exercise of constitutional freedoms is at stake. Undermining the very ethos of the Rule of Law – a key pillar of our Rukun Negara and proudly declared by the present government as its guiding governance compass. Undermining as well the purpose of the constitution “to restrict the majority’s ability to harm the minority”: James Madison, founding father of the US.

Also, by banning open dialogue, critical matters are then relegated to be dealt with in, perhaps, ill-informed and even insidious cloistered whispers.

One of the challenges of the government is to curb this sort of adversarial ethnic remonstrations. Rather than to succumb to it. For, once mob rule pervades, the “Harapan” for the rest of the citizenry could well recede into oblivion.

Gurdial, is president of Hakam, the National Human Rights Society. 

All within reach of the law – Law Speak

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From the Sun Daily

PERHAPS it could be construed as a blight of our justice system when two Court of Appeal decisions struck out actions against Datuk Seri Najib Razak, the then prime minister for alleged wrongdoing in executing his public office. In particular, allegedly pocketing 1MDB funds. On the basis that such actions for misfeasance could only be brought against “public officers”. And, ruled these courts, the prime minister was not such a person.

The decisions raised considerable disquiet in the public mind.

Indeed, the High Court judge deciding the case said rather apologetically that many may find his ruling “most surprising and quite unpalatable to swallow”.

For it then immunises a prime minister from the reach of the law by saying he is not a “public officer” – what else could he be when he draws his salary from public funds; and is entrusted with the task of fulfilling public duties on behalf of the nation?

This renders illusory: “Be ye never so high, the law is above you” – Thomas Fuller’s wisdom cited by courts the world over. By Lord Denning in the 1977 Gouriet case; and our Federal Court in PP v Ottavio (2004).

And recently by a seven-member bench of the Federal Court led by Chief Justice Tan Sri Tengku Maimun in Tony Pua v Najib Abdul Razak. Which overruled the previous decisions.

The Federal Court held that it was wrong to say that the prime minister was not a public officer.

Said Justice Nallini in delivering the Federal Court’s grounds of judgment, it would be a violation of the rule of law to exonerate the prime minister for “outrageous” conduct where he was “alleged to have acted unlawfully, illegally, recklessly and/or knowingly in relation to substantive quantities of funds to the ultimate detriment of … the general public”.

This would be “anathema to the doctrine of the rule of law and the fundamental basis of the Federal Constitution”. Because then a prime minister “can act with impunity, so as to knowingly and/or recklessly dissipate public funds and remain immune to civil action in tort …”. Such a construction of the term “public officer”, which erodes the rule of law, is repugnant and cannot prevail.”

The comprehensive, lucid and admirably analytical judgment had no difficulty in debunking the two Court of Appeal decisions that had held that the prime minister did not come within the definition of a “public officer” under the Interpretation Acts and the Federal Constitution; and could not therefore be sued for the tort of wrongdoing in public office.

First, said the judgment, any “public officer” can be sued for wrongdoing for the tort of misfeasance under the common law – defined as a body of legal rules that have been made by judges in cases, as distinct from rules and laws made by Parliament or in official statutes.

The essence of this tort is that public power cannot be abused in bad faith.

Hence it applies, said the judgment, to holders of the highest offices in administration who are entrusted with the greatest public power and corresponding duty to exercise it for the public good.

To immunise the prime minister and ministers would be repugnant to common sense and the rule of law.

Secondly, neither the Federal Constitution nor any act specifically modified or abrogated the common law as regards the liability of “public officers” as widely defined to include persons in the position of the prime minister.

The earlier decisions of the Court of Appeal and the High Court had ruled that the prime minister and members of the Cabinet are members of administration and not public officers because they were not included in the list of “public services” in Article 132 of the Federal Constitution.

This reasoning was flawed, ruled the Federal Court. Because Article 132 merely identified the bodies and persons involved in the governance structure of the country. It was not meant to do away with the common law definition of the term “public officer”.

The judgment is remarkable in many respects. It locates the tort of misfeasance in public office as grounded in the rule of law. Thus placing all within the reach of the law.

It reinforces executive accountability to legal authority. It upholds the public interest in bringing public servants guilty of outrageous conduct to book.

It dispels the notion that anyone – no matter how high – who abuses his public office is free to act with impunity. And it accords any citizen the standing to make a claim for the loss suffered when a prime minister entrusted with public funds uses them for his personal benefit – if indeed he or she can prove such damage.

The case will now proceed to trial for the litigant to prove the misappropriation of public funds and the loss suffered.

This is a landmark judgment that resoundingly places the role of the judiciary in preserving the “internal architecture” of our constitution – which comprises the rule of law and the separation of powers.

It will long stand out as a judgment which resonates with the words of Montesquieu – a French judge and philosopher, famous for his articulation of the theory of separation of powers: “There is no greater tyranny than that which is perpetrated under the shield of the law and in the name of justice.”

Gurdial is a former law professor and President of HAKAM. 

AG’s appointment: Lessons learnt — Gurdial Singh Nijar

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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.

Read more →

The election money game — Gurdial Singh Nijar

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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

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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

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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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