Saturday, February 28, 2015

KC Vohrah: Ex-CJ Eusoff tried to subvert judge

4:19PM Feb 27, 2015
By Hafiz Yatim

In yet another expose of serious transgressions committed by the Malaysian judiciary, it has now been alleged that former chief justice Eusoff Chin tried to influence a Court of Appeal judge who was about to hear the appeal of the controversial Ayer Molek Rubber Company vs Insas Bhd case in 1995.

The subversion has been alleged by a now retired Court of Appeal judge who made the claims in an in-house publication of the Malaysian judiciary last year to mark the Court of Appeal's 20th anniversary.

Former Justice KC Vohrah - who sat on the panel hearing the Ayer Molek appeal - wrote in his article that one of the judges of the three-member panel was asked to meet Eusoff.

Besides Vohrah (left) - who was then a High Court judge co-opted to sit at the Court of Appeal - the other judges who sat for the case were Court of Appeal judges NH Chan and Siti Norma Yaakob, the latter who later rose to become the first female Chief Judge of Malaya.

Vohrah alleged in his article - titled ‘In the Court of Appeal, during the winds of change’ - that Eusoff called the judge into his chambers before the appeal was heard and when the judge entered, the CJ pointed to a pile of files on his table.

"He (Eusoff) said the papers were related to the Ayer Molek case and he (the CJ) indicated that the appeal had no merit," claimed Vohrah.

Vohrah, however, did not name who was the judge who met Eusoff. His startling article appeared in the booklet Court of Appeal, Malaysia, 1994-2014 - 20th anniversary which was published last year.

In the Ayer Molek case, Insas was represented by the well-known VK Lingam while Ayer Molek was represented Loh Siew Cheang. Lingam was later implicated over the infamous video clip case and was also caught with Eusoff holidaying together in New Zealand.

A royal commission of inquiry formed to investigate into the video clip allegations had recommended action be taken against Lingam and Eusoff and four others, including former former premier Dr Mahathir Mohamad.

History of Ayer Molek vs Insas

In explaining the Ayer Molek case, Vohrah - now a consultant at Lee, Hishammuddin, Allen and Gledhill - wrote that the case involved the grant of an ex-parte order to compel Ayer Molek to effect the transfer of 540,000 ordinary shares of Ayer Molek to Insas in the share register of the company and to issue new certificates in Insas' names within two working days of their receiving the share certificates.

On April 12, 1995, Ayer Molek filed an application to set aside the ex-parte mandatory order of April 10, 1995.

That application came up for hearing before the High Court on April 13, 1995 but the judge adjourned it to April 27, 1995 which was after the two days period he allowed for compliance of his ex-parte order.

The defendants immediately applied for a stay of the ex-parte mandatory order pending disposal of their application to discharge it. The High Court judge refused to grant a stay of his ex-parte order.

On April 14, 1995, the transfer of the shares was registered in the share register of Ayer Molek and new share certificates were issued to Insas under compliance of the ex-parte order.

On April 18, 1995, Ayer Molek filed a notice of appeal against the ex-parte order at the Court of Appeal. On the same day, they filed a motion for a stay of the ex-parte order pending their appeal.

At the Court of Appeal hearing, it was abundantly clear (Vohrah wrote in his article) that grave injustices had been perpetrated in the case at the High Court level.

The appellate court granted an interim order that pending the disposal of the appeal, the respondents (Ayer Molek) were restrained from exercising any rights including disposing of the shares.

Vohrah, Chan and Siti Norma wrote separate judgments, where Chan wrote on the abuse of the process of the High Court while Siti Norma wrote on the fact that the proceedings were filed in the Special and Appellate Powers Division of the High Court whereas it should have been in the Commercial Division.

"I wrote on the company law aspects of the case involving the transfer of shares," Vohrah said in his damning article.

'Unethical lawyers'

Chan, Vohrah remembers, skilfully melded their three views and his judgment stated unequivocally that the case was about an injustice that had been perpetrated by a court of law.

"Here Insas - through their legal advisers - have abused the process of the High Court by instigating the injustice through misuse of the court's procedure by manipulating it in such a way that it becomes manifestly unfair to the defendants," Chan wrote in his judgment.

"By doing what they did, these unethical lawyers have brought the administration of justice into disrepute. While it does not render the
proceedings to be in any way invalid, it may give the impression to right thinking people that litigants can choose the judge before whom they wish to appear."

The High Court case was heard when then the court was housed in Wisma Denmark or Denmark House in Kuala Lumpur and in his judgment, Chan quoted Shakespeare's 'Hamlet' in saying that, "Something is rotten in the state of Denmark."

The Court of Appeal granted the stay order on July 26, 1995 and written grounds were given five days later.

Vohrah wrote: "Swift as an arrow a stay application on appeal against that decision was filed on July 27, 1995. The application and appeal were heard at the Federal Court on August 1, 1995 before a three-member bench comprising Eusoff (above), a Court of Appeal judge and a High Court judge. The written grounds was provided 12 days later which set aside the Court of Appeal decision."

The former judge noted that the Malaysian Bar was aghast at the decision made by the Federal Court and issued a strong statement against it while saying the panel headed by Eusoff had been illegally constituted.

Justice Hishamudin enters

Eleven years after, the retired judge noted the Bar's views was proven right following a RM100 million defamation suit brought by Lingam against Euro Money Publications over an article titled ‘Malaysian justice on trial’ which was published in the International Commercial Litigation magazine.

The case came up before Justice Mohamad Hishamudin Mohd Yunus, whom Malaysiakini highlighted earlier this week for being sidelinedfor elevation to the Federal Court despite being the most senior judge at the Court of Appeal.

While Lingam submitted that the Court of Appeal judgment in the Ayer Molek case had been expunged, Justice Hishamudin (left) stood his ground saying the Federal Court panel by Eusoff was not legally constituted as it comprised only "two legally competent judges, namely, Eusoff and a Court of Appeal Judge. The third judge of the panel, Pajan Singh Gill, was not legally competent to sit on that bench as he was only a High Court judge then".

"Justice Hishamudin ruled that the judgment of the Court of Appeal by Chan, Siti Norma and Vohrah in the Ayer Molek case is still wholly intact and is still a valid and binding judgment and 'I am entitled, indeed I am duty bound, to take cognisance of the judgment in deciding on Lingam's claim in this action'," Vohrah wrote.

Eventually, Lingam's (right) suit was dismissed by Justice Hishamudin.

Eusoff Chin also presided in the controversial Federal Court land case of Adorna Properties Sdn Bhd vs Boonsom Boonyanit in 2000 in Penang where his judgment created an uproar for recognising that land deals done through fraudulent means were legal.

This decision was eventually corrected by then Chief Justice Zaki Azmi in another land matter in 2010 in the case Tan Ying Hong vs Tan Sian San, Cini Timber Industries Sdn Bhd and United Malayan Banking Corporation Bhd.

As a footnote, despite the royal commission of inquiry in recommending action against Lingam and Eusoff, none has been taken till today.

Nevertheless, Lingam is facing contempt proceedings in the Kian Joo Can Company matter.
~ Malaysiakini

Enough is enough, Shafee

3:27PM Feb 27, 2015
By Americk Sidhu
COMMENT A total of eight, very learned and just men and women sitting as adjudicators in two of the highest and most noble Houses of Justice in this fair land of ours, have seen fit to unanimously decree that opposition leader Anwar Ibrahim is indeed guilty of sodomising one Mohd Saiful Bukhari Azlan.

Despite protestations of innocence, prosecutorial impropriety and political conspiracy, we are theoretically obliged to accept this overwhelming conclusion without question and carry on with our lives, whilst Anwar - of course - repays his debt to society by being entertained as a reluctant guest at one of His Majesty’s gaols for the next five years.

No doubt, credit for this successful prosecution has to go to the ‘fiated’ public prosecutor for his legal prowess in convincing three appellate judges and five from the Federal Court that the state was possessed of sufficient evidence to prove, beyond any reasonable doubt, that Anwar had indeed partaken in carnal knowledge against the order of nature with one Saiful Bukhari, an innocent and unsuspecting victim of Anwar’s deviant, yet geriatric, sexual advances.

This unenviable task was achieved despite all legal odds being stacked against the prosecution.

Muhammad Shafee Abdullah, in a brilliant display of his legendary oratorical prowess, was able to overcome the formidable hurdle of reversing an acquittal, proclaimed after a lengthy trial at the High Court.

His powers of prosecutorial persuasion succeeded where those of the ordinary public prosecutor failed miserably.

That is where the attorney-general’s fiat and the entire matter ought to have been laid to rest, in a dignified and honourable manner worthy of any respectable prosecutor - let alone a senior member of the Malayan Bar.

Walking away gracefully from a job well done may have lent some degree of credibility to the novel circumstances surrounding Shafee’s appointment as ‘prosecutor extraordinaire’ on behalf of the attorney-general.

But the current behaviour of that illustrious prosecutor - which began immediately following the upholding, sanctioning, signing, sealing and delivery of Anwar’s conviction and incarceration by the Federal Court - is rather strange, let alone unprecedented.

Many question the reason why Shafee feels he needs to embellish and justify the findings made by the Federal Court.

Surely the in-depth thought process of five eminently trained legal minds - reflected in an equally painstakingly and lengthy written judgment - ought to suffice without having to be propped up by what can only be described as “a mobile rhetorical circus”.

Self-appointed 'public relations managers'

Many are asking themselves why it is necessary for Shafee and his new found sidekick, Youth and Sports Minister Khairy Jamaluddin, to embark on a nationwide ‘roadshow’ to explain in gory and sordid detail, the in-camera evidence given by Saiful at the High Court stage and the reasons why they both feel Anwar had been rightly convicted.

Are these two gentlemen acting as self-appointed 'public relations managers' for the Federal Court? If not, why do they think the decision of the Federal Court needs to be explained to all and sundry in pornographic detail? Would it not be a little more appropriate to merely hand out copies of that Federal Court judgment?

What is even more mystifying is why Shafee appears to be blatantly spearheading an obvious Umno roadshow. Was Anwar not criticised for suggesting this entire prosecution had been a political conspiracy orchestrated by Umno to end his political career, right from the beginning?

Has this accusation now been proved to be correct?

To sum up the situation: A government-controlled Attorney-General’s Chambers appoints a well-known Umno lawyer to take over its role as public prosecutor, only in so far as the appeal against Anwar’s sodomy acquittal is concerned. This political appointee then succeeds in persuading the Court of Appeal to reverse the High Court acquittal and substitute it with a conviction instead.

This same Umno lawyer fights tooth and nail in the Federal Court to ensure the conviction is maintained, and further indicates that the state feels the sentence imposed earlier was insufficient and ought to be enhanced.

Once all this has been finally achieved, this Umno prosecutor - whose job has now ended - personally resorts to a massive nationwide advertising campaign in cohorts with the rather flamboyant youth and sports minister, on behalf of the Umno government, in an attempt to justify Anwar’s conviction to the masses.

Bearing all this in mind, we are urged to believe that Anwar’s prosecution for sodomy (again) has not been politically motivated in the slightest way.

Can someone like me, the ordinary man in the street, be forgiven for thinking that Shafee’s behaviour is politically motivated and carried out at the behest of the Umno government to propagate the notion that the opposition leader is a hardened criminal and is therefore, totally unsuited to potentially leading this country forever?

Let us now turn to the hypocrisy of the entire ironical situation.

Anwar has been found guilty of sodomising Saiful in a mutually consensual manner. This means the law frowns on his alleged propensity to engage in carnal knowledge against the order of nature (whatever that means).

Discriminatory law against homosexuals

This same law (rather presumptuously) says nature has decreed that the only sexual intercourse permitted between two human beings has to be heterosexual, and is to be further confined to one specific female bodily orifice only.

This law rather unfortunately discriminates against homosexuals - who are human beings too, by the way. They are, and will continue to be, created by the same God who designed Shafee and Khairy.

But, this specific law imposes a further sanction not many of us are aware of.

It says you are to be found guilty of the same offence Anwar was convicted of, if you indulge in oral sex.

So, full-blooded heterosexual men are just as capable of offending the provisions of this section as are homosexuals.

Shafee and Khairy, before you start casting first stones indiscriminately, don’t you think both of you ought to be conducting a little personal soul-searching instead?

I don’t think it would ever cross any reasonable heterosexual’s mind to condemn his fellow heterosexual to a five-year jail sentence for enjoying what is colloquially referred to as a “blow job”.

It would therefore appear that this archaic and outdated penal restriction has been preserved in our statute books for the primary purpose of stifling the opposition. This supposition finds traction in the almost complete absence of legitimate prosecutions of anyone else besides Anwar for this particular offence.

Perhaps it may lend credence to your campaign to prolong the vilification of Anwar by swearing on your chosen holy book that both you and Khairy have never, ever committed an offence under section 377A of the Penal Code.

If you are prepared to do this, then you may possibly have the moral and legitimate high ground to continue your campaign.

If not, it may be good advice to just shut up and go home with your tails between your legs, after - of course - making the necessary apologies and repenting profusely for your indiscretions.



AMERICK SIDHU is the lawyer who represented the late private investigator P Balasubramaniam.
~ Malaysiakini

Wednesday, February 18, 2015

Judicial review: Leave granted

by Jonathan Chia, reporters@theborneopost.com. Posted on February 18, 2015, Wednesday


High Court dismisses preliminary objections against application on redelineation exercise raised by EC and state government, fixes March 19 for case mention

See (second left) together with Kho (left), Pauls (second right) and Jamilah leaving the courthouse after the court judgement yesterday.
Shamsul (second left), Azizan (left) and legal officers after the court judgement yesterday.
KUCHING: The High Court here yesterday granted leave to hear a landmark application for judicial review filed by two voters on Jan 28, to declare the Election Commission’s (EC) notice of proposed recommendations for constituency redelineation null and void.

Justice Datuk Yew Jen Kie delivered her judgement in chamber after hearing arguments submitted from the applicants Batu Lintang assemblyman See Chee How and Pauls Baya from Baram and respondent, the EC on Feb 1.

See, when met after the court proceeding, said all three preliminary objections raised by the respondent and the state government namely: the applicants lack locus standi in filing this application, the application for judicial review being premature and questioning that the court had no jurisdiction over the delineation process were dismissed by the Court.

“The Court finds that this is not a frivolous application, that our contentions of non-disclosure and lack of detailed particulars (in the recommendations for constituency redelineation) in the notice published warrant hearing of argument at the substantive stage,” he explained.

The judicial review application filed by See and Pauls sought for a declaration of the Court that the publication and notification of the EC on the delineation review did not comply with the provisions contained in the various Articles and 13th Schedule of the Federal Constitution and therefore null and void.

The Court has fixed March 19 for the case to be mentioned.

Meanwhile, Senior Federal Counsel Shamsul Bolhassan, who represented the Attorney-General Chambers said they would be filing their affidavit within two weeks to answer the arguments brought by the applicants, especially on the part that the notice was defective.

Shamsul explained that the leave application yesterday was actually a judicial review by itself, adding that it would be a 
separate matter whether or not the judicial review would be granted later on.

“Now the leave to file in the application for judicial review has been allowed. So we just wait for the outcome of the judicial review application, whether it is going to be granted or not, that is pending the decision of the Court later on,” he said.

EC legal advisor Azizan Md Arshad was also present at the Court proceeding yesterday. See represented himself and Pauls. He was assisted by Desmond Kho and Jamilah Baharuddin.


Read more: http://www.theborneopost.com/2015/02/18/judicial-review-leave-granted/#ixzz3S4JWSHF7

Tuesday, February 17, 2015

BARU BIAN’S CHINESE NEW YEAR MESSAGE 2015




Another year has flown by. The merciless horse galloped through 2014, its thundering hooves leaving in its wake a trail of disaster and destruction. Foremost in our minds is the loss of three aircrafts associated with our country, causing unimaginable grief for the families of the passengers and crew who perished. Heavy floods in many places caused massive destruction and damage, and many lost their homes. The economy is on a downward spiral, our ringgit having hit a 6-year low last month. The nation’s investment vehicle 1MDB is in debt in the tune of RM41.9bil. Prices of goods have increased markedly over the year. Irresponsible extremist groups are fanning religious and racial tension with the tacit consent of the government. Even government ministers are uttering racist statements with impunity. Students, academics, NGOs, opposition members and even our own cartoonist are being persecuted for speaking up against the corrupt and repressive government. Our country and her people are being deeply wounded by the actions and policies of a government that has long lost the plot. A former Prime Minister even said that something is rotten in Malaysia.

For us in the opposition coalition, it has been a tumultuous year. DAP suffered 2 great losses when Wong Ho Leng succumbed to cancer in June and Karpal Singh was killed in an accident in April. PKR’s Ketua Umum Anwar Ibrahim lost his appeal in a politically manoeuvered trial and is now incarcerated in Sungai Buloh prison. PAS has just lost their revered and humble leader with the passing of Tok Guru Nik Abdul Aziz Nik Mat.

It has indeed been a turbulent year, but that is not to say that we did not have some calm and uplifting moments, for even horses have to rest and graze at times. We are thankful for the voices of reason in the Group of 25 who restored our faith in the goodness and decency of Malaysians. We are proud that members of the younger generation such as the various student leaders have stood firm in their fight for their rights, even to the point of suspension and arrests. Members of the previously silent majority are also speaking up for a better Malaysia.

Encouraged by the glimmer of light that has shone through the darkness, we leave the stormy Horse year with some optimism for a brighter and more peaceful year of the Goat. The element associated with the goat this time is the wood, which is said to symbolize renewal, growth and balance, all which Malaysia is in desperate need of. The goat is known to be an agile and nimble creature, climbing rocky and steep mountains with little effort. Let us all make an effort to shake off the dust and rise from the ashes, so to speak, of 2014. Like the agile goat, let us conquer the mountain of obstacles that stand in the way of the Malaysia that we want it to be. A new year awaits that is full of possibilities and opportunities.

I hope that all Malaysians will resolve to play their part in bringing about the change that this country needs. I believe that the majority of Malaysians want a real democracy where there is observance of the rule of law, where truth and justice prevails, with a government that is accountable, transparent and competent. The elections approach in Sarawak – let us bring our message to the people in all corners of this country that it is the people who hold the key to change. We can reshape the destiny of our future generations by making our voices heard through the ballot boxes. There is hope for better times ahead.

I wish all my Chinese friends a Happy, Healthy and Prosperous New Year.

Xin Nian Kuai Le, Wan Shi Ru Yi!

BARU BIAN
Chairman, PKR Sarawak
ADUN N70 Ba’ Kelalan

2015年 砂州州议员巴鲁比安农历新年信息



转眼间,光阴似箭,一年又过去了。 2014 马年的这匹马,可说是一匹冷漠无情的马,它大地震颤,如雷蹄声留下了不少灾难及种种让人揪心的痕迹。最让我们刻骨铭心的莫过于2014年内发生与我国相关的三大空难。这三大空难对遇难的乘客以及机组人员的家属造成了难以想象的悲痛及伤害。 此外,许多的地方也被大洪水淹没,带来巨大的破坏与损害,造成了许多家庭失去家园。 我国的经济也在往下滑, 上个月,我国的货币 (马币令吉)也创了六年来的新低。甚至一个马来西亚发展有限公司(1MDB),一间全属国家政府的策略,发展与投资公司负债累 累,现有多达419亿的债务。 商品价格也上涨,显然比去年来的贵。我国政府依然对那些不负 责任的极端主义团体煽动宗教和种族间的所作所为保持沉默,伤害了种族间的和谐。最严重的是就连我国政府的部长们也毫无顾忌的谈论及发言具有种族主义的言论及课题。 如今,无论   批评或反对这腐败及镇压的政府的学生,学者,非政府组织,反对派成员,甚至我国的漫画家都遭迫害。国家政府的政策和决策已让我们敬爱的国家和她的人民深受苦难。有一 位前国 家首相也这么说‘大马有些东西正在腐烂 ’,表示我国的腐败。

对于民联,2014年也是非常动荡的一年。2014年,民主行动党痛失两为党领袖,前党主席-卡巴星去年4月在车祸中逝世;前砂州行动党主席-黄和联也因癌症于去年6月离世了,该党遭受巨大的损失。接着,公正党领袖安华也在政治操纵的上诉案败了,现于双溪毛糯监狱服刑。 回教党也刚刚痛失了他们尊敬和谦卑的领导者,已故聂阿兹 (聂老)

2014年的确是动荡的一年,但马儿再猛也得休息,这也意味着还有一些值得我们安慰与感恩的事件。我们非常感激25名马來显要(G25所发言正直及正义的声音,让我们从新建立对国家的信心。值得我们自豪的是,这些年轻一代的成员包括了许多的学生领袖。虽然有些被迫停学及捕,他们仍然勇于争取自己的权益及非常坚定于自己的立场。为了建立更美好的马来西亚,许许多多之前选择保持沉默的人民也开始发言了。

我们即将告别风雨如磐的马年,凭着那在黑暗中的曙光鼓舞我们迈向更美好,乐观及平安的羊年。2015 年属木羊年,据说这是象征着更新,成长与平衡,这恰好都是马来西亚现今非常需要的。山羊是一种灵活敏捷的动物,它们攀爬岩石和陡峭的山脉都毫不费力。就让我们一起肩并肩把2014年所有一切不好的事物摆脱,从新得力;让我们犹如敏捷的山羊般征服一切障碍或阻挡我们建立美好马来西亚的绊脚石。新的一年里充满着无限的可能及许多的机会。

我盼望所有马来西亚人可以发挥自己以帮助,实现与改变这个国家。我深信大多数国人都希望拥有一个真正民主,遵守法治及彰显真理和正义的国家以及结构优化、廉洁高效的政府。砂州州选即将来临,切记人民是改变的关键,让我们一起把此信息传达给所有关心和重视马来西亚前景的同胞吧! 我们能以投票方式表达我们的心声好让我们重塑下一代的命运。更美好的未来是指日可待的,仍然还有希望存在。

我祝愿所有的华裔朋友们 新年快乐 身体安康,新年兴旺幸福,福寿无边。
恭祝大家  新年快乐  万事如意 !!

巴鲁比
砂州公正党主席
N70 BA’KELALAN砂州州议员