Sunday, April 20, 2014
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Columnist Art Harun on The RPK case

Art Harun


RPK was released by Justice Syed Helmy, a Judge of the High Court at Shah Alam. The Home Minister appealed against this release to the Federal Court.

Day 1 at the Federal Court

In the morning of the hearing day, we were informed that the Coram which will hear the appeal consisted of Justices Nik Hashim; Zulkifli Makinuddin and Augustine Paul. RPK advised us that he remember writing articles about Justice Augustine Paul a number of times during the Anwar Ibrahim trial. Some negative remarks were made about him by RPK in his writings.

It was felt that an application for Justice Paul to recuse himself from hearing the appeal should be made. When the matter was called for hearing, Imtiaz asked for a one day postponement in order to prepare and file the recusal application. The prosecution team objected vehemently. The Court initially refused to grant a postponement, even though we made it clear that we would file the recusal application the next day. We were instead asked to make the application there and then, orally.

Imtiaz told the Court that that was impossible to do because we needed to look at evidence and adduce the same through affidavits. The Court asked us why we had not come prepared with the application to recuse and told us to proceed. Imtiaz told the Court that we had had no notice that Justice Paul was going to sit! We were nevertheless told to proceed.

At that point of time, I stood up and walked to the public gallery - where RPK was sitting - to get his instructions. He whispered to me his instruction. His instruction was clear. We were asked not to participate in the appeal. In short, we were supposed to walk out.

I asked him to repeat his instruction, just to be very clear about it. I also told him that if we did that, the appeal would go on without his case being heard, just so he knew the risk of walking out. He repeated his instruction.

I walked back and told Imtiaz of RPK's instruction. Just then and at that precise moment, the Court relented and gave us a postponement.

The next day, we filed the application for recusal. We also wrote a letter to the Court expressing our view that perhaps, in the interest of justice, Justice Paul should not even sit to hear the recusal application.

Day 2 at the Federal Court - hearing of the motion for recusal

On this day, there were 4 motions for hearing. First was the motion for recusal which we just filed. I will touch on the other 3 later in this post.

When the day started, Justice Paul, at the outset, said that he had formed the opinion that in the interest of justice, "everything which need to be said should be said" in the hearing of the recusal motion. He then said under the circumstances, he would not sit to hear the recusal application.

After that, the motion for recusal was called up for hearing. Justice Paul then excused himself and left. Justice Nik Hashim, who was presiding then told us to proceed.

At this point of time, Imtiaz pointed out that the law, namely, section 74 of the Court of Judicature Act, requires a panel of 3 Judges or such greater uneven number of Judges. As it was, there were only 2 Judges (as Justice Paul had excused himself).

The 2 sitting Judges pointed out that section 78 of the same Act allows any remaining Judges, not less than 2 in number, to continue hearing a matter if any Judge in the panel is unable, through illness or any other cause, to hear the matter. They were then of the opinion that section 78 allows them to continue with the case.

Imtiaz pointed out that section 78 did not apply because that section talks about a case which had started before, say, 3 Judges, and in the middle of it one Judge became unable, through illness or any other cause, to continue. In such a case the 2 remaining Judge may continue. However, in our case, the matter had not yet started or commenced.

The Court disagreed and ordered us to proceed. Imtiaz told the Court that the decision to continue with only 2 Judges would found a ground for us to apply for a review later. At this point, Justice Nik Hashim told us that "you can do whatever you like" and asked us to proceed.

The motion for recusal was thereafter heard and dismissed. Justice Nik Hashim then called on Justice Paul to "take his rightful place."

Day 2 - hearing of the other 3 motions

There were another 3 motions to dispose off. One was an application for a panel of 5 or 7 Judges. After Justice Paul had rejoined the panel, this motion was quickly heard and dismissed.

The next 2 motions were applications to adduce further evidence. There were 2 pieces of evidence which were sought to be adduced by RPK, namely;

  • the evidence given by Supt Gan in RPK's case that the police had never investigated the truthfulness or otherwise of RPK's article on the Altantuya murder. This, to our mind is relevant because that article formed one of the basis for RPK's ISA detention;
  • the evidence showing that after RPK was released from his detention by Justice Syed Helmy, the security of the nation had not been threatened in any way.

On the first one, I was asked by Justice Paul what the relevance of that evidence was. I answered that it goes to showing mala fide or bad faith. Justice Paul asked me "what bad faith" and told me to "be careful" of what I submit. I told him that bad faith went to the crux of the matter and therefore it was relevant. Since the police had not even investigated the truthfulness or otherwise of the article, it was clear that his detention based on the same article was made in bad faith, I submitted.

On the second one, Justice Nik Hashim asked me the relevance of the evidence. I told him that the Minister had signed a 2 year detention order. RPK was therefore deemed to be a threat to national security every single day for the next 2 years. The fact that after his release, national security was not in any way threatened would be relevant. ISA is after all not punitive in nature but preventive. Justice Nik Hashim disagreed with me and asked me who said that. I respectfully pointed out that the whole ISA regime is designed to prevent a threat to national security and not to punish people.

Both applications (or motions) were then dismissed.

The appeal proper was then fixed to be heard on a different day not long after.

Day 3 - review application

We quickly prepared and filed an application to the Federal Court to review all the above decisions. The basis for doing so is that the Federal Court was not properly convened as only 2 Judges were sitting. Because of that, all decisions made in dismissing the aforesaid 4 motions were not valid and ought to be set aside.

Ordinarily, the decision by the Federal Court is final. There is no more avenue for appeal. However, in some exceptional cases, the Federal Court may review any decision made by it. One of the established ground for review is that the Federal Court had no jurisdiction or power to make the order under review. To our mind, the previous sitting of the Federal Court clearly had no jurisdiction nor the power to make those orders.

The review application was heard before a powerful panel consisting of the President of the Court of Appeal (number 2 Judge in ranking, after the Chief Justice), Justice Allauddin Mohd Shariff; the Chief Judge of Malaya, Justice Ariffin Zakaria and the Chief Judge of Borneo, Justice Richard Malunjum.

The hearing went well, as opposed to the highly volatile nature of the hearing before the previous panel. The prosecution team however made it a point to say that we were:

  • trying to shop for Judges (to choose Judges)
  • driven by malice
  • guilty of abuse of the Court process
  • guilty of contempt

To say that I was livid is an understatement. I had written about this episode here. Imtiaz handled those allegations in his usual cool, calm and collected way. I, on the other hand, was preparing to hurl the various bundle of documents at the prosecution team!

The Decision Today

Today, the Federal Court delivered a unanimous written decision on our application for review. The decision was written by Justice Richard Malunjum. It was read out by the Court Registrar in open Court.

Justice Richard Malunjum found that the reason proffered by the previous panel of 2 Judges to "continue" with the hearing of the motion despite Justice Augustine Paul having excused himself and left was "untenable". That is because the case had not commenced or started and as such section 78 of the Court of Judicature Act did not apply.

As such, there was, in Justice Richard Malunjum's decision, an "inherent failure" of the Coram in the last Federal Court sitting.

His Lordship therefore exercised the Court's power to review the orders made by the last panel. He found that the dismissal of the recusal application was not in order and he set aside the order for dismissal.

Because the recusal application was improperly dismissed, it follows that the hearing of the 3 motions which took place after the dismissal of the recusal application, was also tainted or in his word, "contaminated." The orders dismissing the 3 motions are therefore also set aside.

What it Means

RPK is not yet out of the wood. What today's order means is that all parties have to start afresh. All motions filed by RPK are now kept alive and will have to be reheard by the Federal Court. A fresh hearing date will now be fixed for all the motions and the appeal by the Home Minister. We will be duly informed of the date as and when it is so fixed.

Personally though, I feel vindicated. At least it is now proven that I was not driven by malice. I was not contemptuous. I didn't indulge in Judge shopping. And no, I didn't abuse the Court's process.


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