Wednesday, June 24, 2009

Selangor Turf Club's Vincent Tan faction suffers loss in the Federal Court;Implications for Berjaya's Turf Club project

I have previously written about the rather premature inclusion of the Selangor Turf Club(STC) land in the virtual vault of Berjaya Land Bhd's bankable assets (see http://sahathevan.blogspot.com/2007/11/vincents-edge-declares-ownership-of.html).
That deal rests on a promise that Berjaya will provide each Turf Club member a bungalow from its proposed development on that land. The enticement appears to be based on the principle that an unincorporated association is not a legal entity and is thus one in which assets, rights and liabilities accrue to its members.

However, on 28 May 2009 the Federal Court in a matter brought against the STC's Committee by two of its members , decided that the STC , being a registered society pursuant to section 7 of the Societies Act 1966 (the Act) is in fact a legal entity that can own and dispose of property.

In handing down the judgement of the Court ABDUL AZIZ MOHAMAD, FCJ said:
As far as concerns the vesting aspect of the funds and property of
the Club, Rule 24(a) of the Rules(of the STC) is consistent with section 9(a) and (b) of the Act. But where the rule speaks of the Committee “as Trustees for
the Ordinary Members of the Club”, and when rule 3 speaks of ordinary
members having the right “to share with other Ordinary Members in the
property and assets of the Club”, I am of opinion that those rules are
looking to the day when the registered society that the Club is, is
dissolved, or when its registration is cancelled. When a registered
society is dissolved, section 9(h) requires that “all necessary steps shall
be taken for the disposal and settlement of the property of such society,
its claims and liabilities, according to the rules (if any) of the said society
applicable thereto”. When the registration of a registered society is
cancelled, section 17(1)(a)(b) provides, inter alia, that the property of
the society shall vest in the Director General of Insolvency who “shall
proceed to wind up the affairs of the society, and after satisfying and
providing for all debts and liabilities of the society and the costs of the
winding up shall pay the surplus assets, if any, of the society … to
members of the society according to the rules of the society …”. I
should think that, in the case of dissolution, that is also what happens to
the surplus assets of a society, in consequence of the steps that section
9(h) requires to be taken."
http://www.kehakiman.gov.my/judgment/fc/latest/2009/J-02_i_1508_W__CAV_.pdf


It would appear then that the proposal to hand each and every member a bungalow lot as part compensation for the land may well be invalid. In light of the judgement above, STC members have limited, if any, rights to the particular assets that constitute the property of the STC but rather to the surplus of assets over liabilities in the event of deregistration. If the Berjaya Land proposal is deemed valid members will in fact be sharing in the proceeds from the sale of an asset of the STC.
END

Thursday, June 18, 2009

Defence of Qualified Privilege,once banished, returns to Malaysian courts

In the defamation matter of Tan Kok Ping v New Straits Times Press (Malaysia) Bhd, Mr. Justice Ghazali Cha of the High Court in Malaysia has ruled that the New Straits Times Press (Malaysia) Bhd, its former group editor-in-chief Tan Sri Abdullah Ahmad and former reporter V. Ramanan, who are the defendants in the suit, were entitled to succeed on the defence of qualified privilege and therefore “the impugned articles were immune from the suit”.

Ghazali Cah also said the two articles which were subject of the action had merely given account of police investigations into an alleged forged letter and did not convey the meaning that Tan, 62, was guilty of forgery or had been a party to the forging of the letter.

“I do not agree that a reader would be overtly presumptuous and infer guilt on the plaintiff, but merely take the article to mean there was an ongoing police investigations.

“The articles merely intended to show as a result of a police report lodged, Tan as the Magnum Corporation Bhd executive chairman had been called in for questioning,” he said.

Tan had sued the defendants claiming they had falsely and maliciously printed and published, or caused to be printed and published, certain defamatory words in two articles in the New Straits Times and in the Malay Mail on April 5, 2002 which was accompanied by his photograph.
(http://thestar.com.my/news/story.asp?file=/2009/6/19/courts/4149370&sec=courts)

Previously, Malaysia's courts in hearing defamation matters had all but banished the defence of qualified privilege, particularly in matters that involved Tan Kok Ping's business associate, Tan Sri Dato Seri Vincent Tan Chee Yioun.

Wednesday, April 15, 2009

Sri Ram's reversals: Was it a case of a brahmin fearing being born again to a lower caste?

In regards to the newly appointed justice of the Federal Court Gopal Sri Ram, was it the fear of being reborn into a lower caste that brought about in the good brahmin-iyer the following reversals:

In 1995 in the matter of Vincent Tan v MGG Pillai:

A second judge on the panel, Gopal Sri Ram, also rejected an appellant's argument that the 10 million ringgit judgment was excessive because Tan Sri Tan hadn't proven the extent of damages he suffered from four articles published in Malaysian Industry in late 1993 and early 1994. Judge Sri Ram said the articles suggested that Tan Sri Tan had manipulated the government to secure lucrative contracts, adding that "this must be a warning signal to irresponsible journalists that they cannot say anything they like and get away with it," according to Bernama.
(Malaysian Appeals Panel Upholds Stiff Awards Levied in Libel Case
By Stephen Duthie ;19 April 1995,The Asian Wall Street Journal)

Then, by 2001 , an otherwise inexplicable change of heart:

In (a) celebrated judgment of Court of Appeal judge Datuk Gopal Sri Ram in 2001, the RM1 million award was reduced to RM100,000, or just one-tenth of the original amount.

More importantly, he had boldly spoken out on the pressing need to put an end to the mega trend, which began in 1996.


Sri Ram referred, in particular, to the suit that started it all - the RM10 million suit brought by tycoon Tan Sri Vincent Tan against several persons, including freelance journalist M.G.G. Pillai.

In his judgment, Sri Ram said this decision had been "much misunderstood".


"The underlying philosophy of that decision is that injury to reputation is as, if not more, important to a member of our society than the loss of a limb. But we think the time has come when we should check the trend set by that case.

"This is to ensure that an action for defamation is not used as an engine of oppression. Otherwise, the constitutional guarantee of freedom of expression will be rendered illusory," he said.

(Reining back quantum of damages. By Carolyn Hong. 27 July 2003.New Sunday Times)



And let us not forget this little matter from the bad old days:

The most recent case is playing out in a small court room in the southwestern suburbs of Kuala Lumpur, where the mother of a 17-year-old high-school student is suing the International School of Kuala Lumpur, claiming he was unfairly dropped from the school's debate team. Damages sought: a record 6 million ringgit ($2.4 million).

The case has sparked intense interest among legal circles, educators and foreign investors in the Malaysian capital. For starters, the thin, bespectacled student, Govind Sri Ram, is the son of a prominent Court of Appeals judge, Gopal Sri Ram. And many are surprised at the speed with which the case raced through Malaysia's legal labyrinth. The trial began on January 6, less than seven months after a writ was filed with the High Court. "Normally, in a civil case, you're lucky to get a hearing within five years," a veteran lawyer notes.

The main point of interest for lawyers is that the case is breaking new legal ground. "It's the first time in Malaysian history that someone is suing on the basis of unfair discrimination," notes one. "Malaysia has no laws on discrimination."

Educators are also following the case closely. A hefty award for the plaintiff would be a major financial burden on the school -- and could hinder Malaysia's efforts to attract foreigners.
(Malaysia -- See You In Court: A series of civil suits suggests growing litigiousness ,By Murray Hiebert in Kuala Lumpur ,23 September 1999
Far Eastern Economic Review)



Next, in an decision clearly in favour of the establishment,The Bakun Dam matter-where Sri Ram held that "In particular he (James Foong) did not have sufficient regard for public interest. Additionally he did not consider the interests of justice from the point of view of both the appellants and respondents."
The appellants were Penan trying to defend their homes;the respondents the Governments of the Federation of Malaysia and the State of Sarawak.
( see http://malaysianjudges.blogspot.com/2007/08/when-fairuz-sri-ram-mokthar-sidin.html )


Then, in a reversal against the establishment , this unseemly commentary on matters that were not put before the Court which resulted in a successful appeal against his decision:

The court held that the main and supplementary Appellate Court's decisions, written by Justices Datuk Gopal Sri Ram and Datuk Zulkefli Ahmad Makinudin, contained elements of real danger of bias.

The court, led by Chief Justice Tun Ahmad Fairuz Sheikh Abdul Halim, also held that the appellant, Metramac, and its case, have been unfairly regarded with disfavour.

The quorum made the findings after considering the question of biasness in the Court of Appeal's judgment, in particular, the adverse remarks and findings against third parties made in the written grounds of judgment by Justice Sri Ram.

To the remarks and findings, the Federal Court expressed its regret that they were not only unnecessary, irrelevant and not supported by evidence, but the language used was unwarranted to say the least.

On Jan 12 last year, the Court of Appeal ordered Metramac, owner and operator of East West Link Expressway and Sungei Besi Expressway, to pay RM65 million to Fawziah Holdings as compensation for loss of advertising rights, including all proceeds to be received under future contracts.

In Sri Ram's written grounds of judgment, he, among others, commented that Tan Sri Halim Saad and his business partner, Anuar Othman, siphoned off RM32.5 million from Metramac and enjoyed the patronage of former Finance Minister Tun Daim Zainuddin.
(JUDGMENTS BIAS, FEDERAL COURT SETS ASIDE APPEAL COURT'S DECISION

19 July 2007,Bernama Daily Malaysian News)

I suppose one should also ask: Can a man found to be biased in his judgement be ever suitable for promotion based on "merit" to the highest court in the land?

Sri Ram's "landmark" rulings: Some examples

After 15 years in the Court of Appeal, Datuk Gopal Sri Ram will be elevated to the Federal Court together with two judgesSri Ram, 65, has the distinction of being the first lawyer in private practice to be appointed straight to the Court of Appeal when it was set up in 1994. He never served as a judicial commissioner nor a High Court judge.

Occasionally, he has been invited to the Federal Court bench in the interest of justice and has written about 800 judgments.

Some of his landmark rulings are in the areas of public, contract and industrial law.(http://www.nst.com.my/Current_News/NST/Tuesday/National/2531091/Article/index_html)

The following are examples of this great mind's works:

a) Tommy Thomas & Ors v. MBf Capital Berhad and MBf Northern Securities Sdn Bhd
"...it was not necessary for a company to be in possession of cash in order to satisfy the court that it was in a position to pay the costs of an action brought by it in the event that it failed in its suit."
(http://malaysianjudges.blogspot.com/2007/08/fairuz-sri-ram-haidar-not-necessary-for.html)

b)The Sababumi matter where Sri Ram seems to have declared huge sections of the Malaysian gaming industry invalid:-http://malaysianjudges.blogspot.com/2007/08/did-sri-ram-mokthar-siddin-declare.html

c) The Bakun Dam matter-where Sri Ram held that "In particular he (James Foong) did not have sufficient regard for public interest. Additionally he did not consider the interests of justice from the point of view of both the appellants and respondents."
The appellants were Penan trying to defend their homes;the respondents the Governments of the Federation of Malaysia and the State of Sarawak.
http://malaysianjudges.blogspot.com/2007/08/when-fairuz-sri-ram-mokthar-sidin.html

Federal Court appointments: James Foong's appointment must worry any investor

So, James Foong has been made a justice of the Federal Court of Malaysia.

Bar Council president Ragunath Kesavan has told Bernama that the Malaysian Bar had given consultation and suggestion on the appointment of judges during meetings in the Judicial Appointments Commission (JAC).

Ragunath said it was very important for the country to have a first class judiciary to attract foreign investors to invest in the country
(http://www.bernama.com/bernama/v5/newsgeneral.php?id=404332)

Well, what does one make of James Foong's intervention on behalf of Public Bank?
(see my post at http://malaysianjudges.blogspot.com/2007/08/case-of-james-foong.html)
Clearly ,any investor, foreign or local unfortunate enough to have a matter before this man needs to be mindful that their opponents are not friends of Foong. It does appear that he treasures (pun intended) these friendships over and above his duties. Then, who am I to say ; after all he has been rewarded for his somewhat peculiar perception of judicial independence.

Wednesday, March 4, 2009

Malaysian High Court decides that it can impose the right to legal representation, determine who represents whom

This seemingly unarguable right to counsel was first introduced in Common Law more ...in 1495, during the reign of Henry VII,(when) the King signed a law which read, translated from ancient English into current vernacular:

After the said writ of writs be returned, the justices shall assign to the same poor person or persons, counsel learned by their discretions, which shall give their counsels nothing taking for the same, and in likewise the same justices shall appoint an attorney and attorneys for the same poor person and persons which shall do their duties without any rewards.
http://www.wsba.org/atj/committees/jurisprudence/attyrep.htm

Readers will agree that since 1495 persons appearing before a court have had the right to determine who their legal representatives would be.
Even the Government of Malaysia has on occasion utilised counsel other than the Attorney-General.
However, that has not prevented this gem of a judgement from being handed down by the High Court of Malaysia:


'State legal adviser must represent Speaker' (updated)


IPOH: The High Court has ruled that Perak State Assembly Speaker V. Sivakumar must be represented by the state legal adviser in a suit brought against him by three independent assemblymen.

The ruling Thursday by Judicial Commissioner Ridwan Ibrahim would be seen as a blow to the Pakatan Rakyat alliance, whose lawyers have argued that having the state legal adviser representing the Speaker would be a clear conflict of interests.

The suit was filed by assemblymen Jamaluddin Mohd Radzi (Behrang), Mohd Osman Mohd Jailu (Changkat Jering) and Hee Yit Foong (Jelapang) against Sivakumar for declaring their seats vacant using their undated resignation letters.

All three had previously quit from their parties but maintain they had not vacated their seats. Their resignations led to the political crisis in Perak and to the state being taken over by Barisan Nasional after they had pledged their loyalty to the coalition.

They are being represented by Umno legal adviser Datuk Mohd Hafarizam Harun.

Ridwan had on Tuesday ruled that Sivakumar must be represented by the state legal adviser in a suit filed by Perak Mentri Besar Datuk Dr Zambry Abd Kadir.

The Speaker had objected because the state legal adviser had acted for Dr Zambry in a different case last week.

The High Court later set March 11 to hear the case of the three independents who are seeking a declaration that they are still elected representatives.

The suit against Sivakumar challenging his decision to suspend and bar Dr Zambry and his six executive council members from the State Assembly will be heard on March 23.

http://www.thestar.com.my/news/story.asp?file=/2009/3/5/nation/20090305122153&sec=nation

Time and time again Malaysia's judges prove that they preside over the best system of justice money can buy.

Tuesday, February 17, 2009

Elizabeth Wong: The problem is not in the photos but in Malaysia's Sharia code

If the reports below are accurate, Elizabeth Wong was photographed ,in some cases partially clothed, by her former boyfriend, Hilmi Malek, a Malay-Muslim subject to Malaysia's sharia codes.
The photos provide prima facie evidence that he had committed khalwat (close proximity), an offence for which he can face criminal prosecution in Malaysia.

The problem for Wong, "Dr" Anwar Ibrahim, and the PKR is then , their stand of sharia, and how it is be imposed on non-Muslims.

In April 2008, the Anwar inspired e Islamic Institute of Understanding Malaysia (Ikim) and the Syariah Judiciary Department Malaysia made submissions to the Attorney-General arguing that a NON-MUSLIM committing khalwat with a Muslim should also be held liable for the offence.

(Non-Muslims in khalwat cases 'should be charged' ,Hazlin Hassan, Malaysia Correspondent ,3 April 2008,Straits Times)


"Dr" Anwar has made conflicting statements in regards to the imposition of Sharia on non-Muslims.While on the one hand declaring that Sharia should not be imposed on non-Muslims, the bearded one has also said:
Justice entails ruling according to the dictates of Islamic law...

(http://www.journalofdemocracy.org/articles/gratis/Ibrahim-17-3.pdf)


Even the DAP/Pakatan's Karpal Singh has concerns about where "Dr"Anwar stands on sharia in Malaysia-see for example http://www.themalaysianinsider.com.my/index.php/malaysia/14722-anwar-should-speak-on-hudud-laws-says-karpal

Wong ha staken the matter to the police , as is her right. Unfortunately for her, a full investigation may also mean an investigation of Hilmi's transgressions of the Sharia code. The problem for her, Pakatan and Dr Anwar is what to do with demands that the "other" be also punished.
END


On Elizabeth Wong and Hilmi Malek :





Hunt for Wong culprit
By Yushaimi Yahaya and Frankie D'Cruz February 17, 2009 Categories: News

Nude photographs of Selangor legislator Elizabeth Wong were handed over to the Petaling Jaya police last night by the Malay Mail.

A Bukit Aman task force, assigned to probe the case, is expected to interview several people, including a Parti Keadilan Rakyat member in his 30s said to be Wong's former boyfriend, to identify the perpetrators behind the recording of the images.

The boyfriend, a former PKR divisional secretary and now an ordinary member, is a personal assistant to a PKR Member of Parliament.

Wong, 37, who is also Bukit Lanjan assemblyman and State executive councillor for tourism, consumer affairs and environment, told Malay Mail during a meeting last Friday that she had broken up with her boyfriend.

Malay Mail editors, who had alerted Wong to the pictures at the same meeting, handed over two images to senior police officers, who later recorded a brief statement from them last night.

One was a picture of her sleeping on the sofa of her Bukit Gasing home, and the other, with her private parts exposed.

Police were also informed that Wong had confirmed that the pictures were taken in her home.

Wong had confirmed to Malay Mail at last Friday's meeting that the pictures were that of her but maintained that the identity of the photographer was a mystery.

Police sources said the probe, to ascertain who had taken the pictures which Wong had claimed were taken without her consent, is expected to also cover a report published in theSun yesterday.

The newspaper had front-paged a report on the existence of "at least 10 other" photographs and video clips of a State assemblywoman.

It reported that it had sighted two photographs and "at least 10 other pictures that have fallen into the
hands of unscrupulous people who are attempting to use it for political purposes". theSun had said that the two photos it sighted showed a PKR State assemblywoman "asleep on a couch, her clothes ruffled and tousled, exposing intimate areas".

Malay Mail also had a report yesterday on nude photographs of Wong being in public domain. In our report, we had stated that it was not known if the photos were widely available.

Wong, who issued a media statement yesterday after making a police report in Damansara the night before, is scheduled to give her full statement to the police this afternoon.

The Selangor State Exco is expected to meet this morning to discuss the matter.

Leaders of the Pakatan Rakyat coalition met last night to discuss the issue which has sparked a public debate, with Barisan Nasional and PR leaders as well as the public having mixed views.
http://www.mmail.com.my/Hunt_for_Wong_culprit.aspx


Now, where's Hilmi?
By Yushaimi Yahaya & Frankie D' Cruz February 18, 2009 Categories: News

Police are looking for Hilmi Malek, 32, for questioning in connection with the Elizabeth Wong nude photograph imbroglio.
http://www.mmail.com.my/Now,_where's_Hilmi-e-.aspx#

See Also:
My special thanks to the following folks:- My family - especially my mother who came down all the way from Ipoh to support me, like making me sleep, making me swallow 5 vitamin pills each morning and for all those soups and herbal drinks; my boyfriend Hilmi who has been incredibly patient and supportive;
(http://elizabethwong.wordpress.com/2008/03/10/ge12-thank-you/)

Thursday, February 5, 2009

Does Sultan Azlan Shah have the power to appoint a new government?

THE following is the media statement issued by the office of Duli Yang Maha Mulia Paduka Sultan of Perak, Sultan Azlan Shah which has the effect of a new government being appointed in the State of Perak,Malaysia:

His Royal Highness had used his discretion under Article XVIII (2)(b) of the Perak Darul Ridzuan State Constitution and did not consent to the dissolution of the Perak State Assembly.YAB Datuk Seri Mohammad Nizar Jamaluddin was summoned to an audience with the Sultan to be informed of his Royal Highness’s decision not to dissolve the State Assembly, and in accordance with the provisions of Article XVI (6) of the Perak Darul Ridzuan State Constitution, DYMM Paduka Seri Sultan of Perak ordered YAB Datuk Seri Mohammad Nizar Jamaluddin to resign from his post as Perak Mentri Besar together with the members of the state executive council with immediate effect.

If YAB Datuk Seri Mohammad Nizar Jamaluddin does not resign from his post as Perak Mentri Besar together with the state executive council members, then the posts of Mentri Besar and state executive councillors are regarded as vacant.

http://thestar.com.my/news/story.asp?file=/2009/2/6/nation/3209890&sec=nation


According to Dr Shad Saleem Faruqi , Professor of Law at UiTM:
"...the constitutions of the various states as well as the Eighth Schedule of the Federal Constitution confer on Their Majesties discretionary powers in some fields, namely: (inter alia)
» withholding of consent to a request for the premature dissolution of the assembly
(http://www.malaysianbar.org.my/constitutional_law/powers_and_functions_of_state_rulers.html)

Note that the above deals with the Sultan's powers in regards to a dissolution of the assembly.

In the current case in Perak, the Sultan has in effect appointed a new government. The question then: what is the source of the Sultan's power to appoint a new government?

In this regard, the Australian experience of 1975 which involved the dismissal of the government of the day , may prove instructive. In 1975 the government of the day was unable to govern due to supply (finance bills) being denied by the Upper House or Senate which was then controlled by the Opposition.The Governor-General ((being the Queen's representative) had to consider what steps could be taken to ensure governance of the country.
The Australian Constitution does not contain explicit provisions in regards to the matter of the dismissal of a current government. Consequently , the Chief Justice at the time advised the Governor-General Sir John Kerr, as follows:

But there is an analogy between the situation of a Prime Minister who has lost the confidence of the House of Commons and a Prime Minister who does not have the confidence of the parliament, i.e. of the House of Representatives and of the Senate. The duty and responsibility of the Prime Minister to the Crown in each case is the same: if unable to secure supply to the Crown, to resign or to advise on election.
In the event that, conformably to this advice, the Prime Minister ceases to retain his Commission, Your Excellency's constitutional authority and duty would be to invite the Leader of the Opposition, if he can undertake to secure supply, to form a caretaker government (i.e. one which makes no appointments or initiates any policies) pending a general election, whether of the House of Representatives, or of both Houses of the Parliament, as that Government may advise.

Accordingly, my opinion is that, if Your Excellency is satisfied in the current situation that the present Government is unable to secure supply, the course upon which Your Excellency has determined is consistent with your constitutional authority and duty.

http://whitlamdismissal.com/documents/barwick-letter.shtml

Readers will note that the discretionary (or reserve ) power here only allowed for the appointment of a care-taker government , pending a general election. In other words, the Governor-General was not thought to have the power to appoint a new government. That was a matter that had to be decided by the electorate.

In the Perak matter , the Menteri Besar (Chief Minister) has in fact advised that elections be called. Hence it would appear on the face of it that the Sultan has circumvented the law and acted outside his authority.
Comments welcome.