APPEAL COURT DECISION A LOGICAL FICTION


As individuals we have our own initiatives and responsibilities as we some times feel that we are useful and get the impression that we are indispensable. But then, being mortals the demise factor is an unavoidable fact of life. Therefore, honour is a vital need of the human soul.

Hence, in our daily life even the common man on the street in his daily interaction, even with his unschooled intelligence does not rigidly apply the common sensual rules to obtain his side of the bargain. For all intent and purpose, flexibility would reign to make an exception to the general rule in respect of his aims and objects, in order to reach an amicable conclusion, when a difficult occasion presents itself.

By analogy, the defamation appeal case of Anwar Ibrahim which came before the court of appeal was more of an opportunity for Anwar to prove the facts that the high court had erred in law and in fact when his case was dismissed.

As observers, we know that a trial in any court is amongst the most complex of all existing human institutions In a civilized world a trial fulfils a variety of important roles for the purpose of maintaining human decorum. The court is expected not to be biased and should carry out its role in such a manner on the premise that it is disinterested in the truth.

If it was otherwise, we would have chaos like in the days of the cave man, with a club-wielding attitude, where we take the onus upon ourselves to settle a dispute based on our hidden secrets, magical powers and imagination, with our opponent. But then for some 5,000 years or more we have moved away from such a  horror, fascination and admiration of the acts and conduct of the primeval man and honour the precepts of our modern civilization.

Therefore, as we have followed the traditions of our colonial masters where their law had developed since 1066 and since our Federal Constitution is written in English, our trials have become a kind of an established ritual in the same way and so  our society has evolved. The courts are guided by rules to get over today’s crisis and move on to face the crisis by the break of the dawn of tomorrow.

So, the crisis that was before the court of appeal was an appeal of Anwar Ibrahim in his RM100 million defamation suit against Mahathir. The appeal court decided to dismiss Anwar’s appeal on a rather flimsy technical point, that the Memorandum of Appeal(MOA) was filed in the English language and not as required under the rules of the court of appeal in the national language.

What seems to be most amusing is the fact that the “Supreme” law of Malaysia, as of 31.08.1957, that is, the Federal Constitution is written, in English. The National Language Act(NLA) 1963/67 was promulgated subsequently and is subordinate to the Federal Constitution. In Sabah and Sarawak based on the Rajah Brooke’s rule all cause papers filed in court, are only in the English language.

So what is the big façade which has been fabricated by the court of appeal, to dismiss Anwar’s appeal on frivolous grounds which only goes to demonstrate to the society at large the ineptitude of the judges who sat on the appeal and delivered such a shameful decision.

As much as Rules in general have to be obeyed, the Rules of the high court categorically state that in the administering of any of the rules the court or a judge shall have regard to the justice of the particular case and not only to the technical non-compliance of any of the rules. Further the Rules Committee has effectually stipulated that the effect of non-compliance, omission or mistake in practice or procedure of the rules is to be treated as an irregularity and not a nullity.

Therefore, since the constitution being the supreme law of the land is written in the English language, it would be correct to assert that the National Language Act 1963/67 is subordinate to the constitution. As such when Anwar’s solicitors filed the MOA only in the English language, it was a mere irregularity.

The court of appeal should have allowed Anwar, time  to file a National language copy of the MOA as it would not have caused any injustice to Mahathir who has siphoned of more than RM100 Billion of our tax payers money during his 22 years as the Prime Minister of Malaysia and for being a racist.

The judges at the court of appeal have failed miserably and have gone against their oath of office. Whilst a trial of any nature which is before the court in a civilized world is an exquisitely subtle method of resolving disputes, the judges of the court have demonstrated to the court of public opinion that they are apolitical, feeble and not independent.

The reasons are pure and simple. All that Anwar has to prove to the court is that Mahathir has maliciously;

  • uttered words which are untrue;
  • the words have been published maliciously; and
  • that special damages have been suffered as a result.

Therefore based on the provisions of the Defamation Act 1957 (Act 286) all that Anwar has to establish is that the “words calculated to disparage the plaintiff(Anwar) in any office, profession, calling, trade or business held or carried on by him at the time of the publication, it shall not be necessary to allege or prove special damages……”

The judges of the court of appeal have failed to uphold the rule of law. They have failed to recognize that fundamental rights are not the same as ordinary rights. And that the NLA cannot supersede the Federal Constitution. They have failed to exercise judicial prudence and flexibility but have instead become apolitical. They have acted in the most ridiculous and insolent manner and have openly demonstrated their tyrannical behavour and feeble character.

Under these circumstances they have dismissed Anwar’s appeal which is meritorious and a genuinely triable  issue which raises a number of potentially troubling questions.

Therefore, the only safe conclusion that the court of public opinion can arrive at is that whilst the judges endeavoured to justify or camouflage their decision that Anwar had by filing the MOA in the English language, it constituted an injustice to Mahathir and that it was an abuse of the process of the court, thus making the decision a logical fiction.

By that, the judges have demonstrated that it is easy for them to judge the errors of others whilst the court of public opinion has had no difficulty whatsoever to recognize the judges errors which are hopeless and baseless.

Advertisements

One Response to “APPEAL COURT DECISION A LOGICAL FICTION”

  1. boscopa Says:

    Yes. I am the author of this post.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s


%d bloggers like this: