Mr. Jaspal Singh of the New Straits Times has written a curious news report today titled ‘Technical flaws in Pakatan suit may hold up hearing’. My interest in his report is not for the content. It is the usual propaganda that purports to pass off as news. No, my interest this time is in the judicial source for his report.[Note: An originating summons is one of four methods one can initiate a legal action in the High Court in Malaysia. It has to be supported by an affidavit. It is generally used when the material facts in issue are not in dispute. See Order 5, 7 and 28 of the Rules of the High Court 1980 (RHC80) for the actual provisions governing this originating process.]
Let us first look at the comments obtained from his ‘judicial sources’. They express actual legal opinions on the merits of the application supposedly to explain why the High Court ‘could not be blamed for not proceeding with the civil suit to declare the three seats vacant…’ The judicial source then sets out four reasons: (i) no supporting affidavit was filed (ii) there was no certificate of urgency filed (iii) failed to extract sealed copies of the Originating Summons (iv) PKR’s lawyer, Mr. Leong Cheok Keng did not obtain sanction from the State Legal Adviser to appear for two parties. An assessment of the quality of these legal opinons shall be undertaken later.
What is interesting is that Mr. Jaspal did not do the usual of seeking the opinions of the Defendant’s solicitors or the Defendant themselves, or even the Plaintiff’s solicitor about their thoughts about the case. Instead he turned to ‘judicial sources’. This is curious. What is a judicial source? It cannot be the court clerks or interpreters because they are not judicial. Furthermore, the opinion expressed in the suit certainly indicates some semblance of legal ability, although even then it is not much.
So a judicial source in this case would either be the Senior Assistant Registrars, Deputy Registrars, the High Court Judges and the Judicial Commissioners. But I would not count on the Senior Assistant Registrars or the Deputy Registrars undertaking such a bold act of expressing their legal opinions to reporters anonymously. Even if they did so, they would be acting on instructions.
So we have to move up the food chain, leaving us with High Court Judges and Judicial Commissioners. If we recall from previous significant political cases such as Anwar and Altantuya, the establishment’s modus operandi are consistent: they will not use an established Judge, or those with agreeable reputation at the Bar. They will use someone fresh or not within their area of competency. Justice Augustine Paul was elevated from the doldrums of the Sessions Court to hear Anwar’s case when the most senior and knowledgeable judge hearing criminal cases at the time, Justice KC Vohrah, was cast aside. Justice Ariffin Jaka, a commercial judge, was transferred over just to hear Anwar’s corruption case. Again in Altantuya, Justice Mohamed Zaki Yassin, a fairly junior High Court Judge was tasked to hear a case of such considerable importance. Based on this trend, I would rule out the High Court Judges.
I foresee the counterargument that it would be likelier for a High Court Judge to pull something like that since they are already confirmed and have security of tenure. But previous trends militate against this argument. Furthermore, there is nothing more for a High Court Judge to prove except towards further promotion. Previous instances also indicate that ‘higher level’ work is required for such remuneration. This leak is gutter level amateurism.
So we are left with the Judicial Commissioners. A Judicial Commissioner now is something like a trainee High Court Judge with a very limited tenure. They are usually given 2 – 3 years to prove their abilities before they are confirmed. How they prove these abilities of theirs we don’t know except for those who appointed them. The point here is that they have something to prove. They have to do it to ensure confirmation to High Court judgeship. If not it’s back to retirement or whatever lower post they were in.
In short, the possibility for mens rea (motives) exists here. Since they share similar powers as a High Court Judge, they can instruct their Registrars to do their bidding. More tellingly, an appointed Judicial Commissioner from the Judicial and Legal Service these days hasn’t very much experience and knowledge in certain areas of the law. In my experience, when they are sent to immediately adjudicate on civil matters, they start off poorly especially where it concerns procedures and practices. They tend to find their feet on it, if at all, after at least a year if they are the cleverer sort.
To digress for a moment, they are generally unlike the Judicial Commissioners that come from the Bar who were in the thick of litigation. They are much better versed in procedure, substantive law and the practices at the Bar. Two excellent examples of the quality of people we need to recruit and have sitting as Judges (from High Court right up to the Federal Court) are the recently appointed Judicial Commissioners are Puan P. Nalini and Tuan Mohd Ariff Yusof.
Now let us turn to the legal opinion given by Mr. Jaspal on the application filed. It demonstrates an enthusiasm to curry favour as strongly as poorly as this judicial source grasps the applicable civil procedure.
Issue (i) is utter rubbish. Order 28 Rule 3(2) RHC80 provides as follows:
Where the plaintiff intends to adduce evidence in support of an originating summons he must do so by affidavit, and must file the affidavit and serve a copy thereof on every defendant not later than 7 days after the service of the originating summons whether or not such defendant has entered an appearance and whether or not the summons is one to which an appearance is required to be entered.
So the rules envisage the affidavit to be served only after the originating summons was filed, sealed and issued by the High Court. The affidavit does not have to be filed with the Originating Summons.
Issue (ii) is also rubbish. One files a certificate of urgency if the party wishes, for good reason, to have the case expedited. The High Court can also take cognizance of the application and issue an early hearing date. In fact, that is what is happening in Kuala Lumpur now. Early hearing dates are being given for applications and trials now even without a certificate of urgency. And you certainly don’t need to file such a certificate for the High Court to process the OS.
Issue (iii) finally has some substance. Just kidding. It’s rubbish too. To say the Plaintiff ‘failed to extract sealed copies of the OS’ is untrue. What happens when you file an OS in court is simply this: The Senior Assistant Registrar or Deputy Registrar will set an appropriate hearing date on the OS, chop it with the court seal and sign the OS. Once this is done, what usually happens is the court clerks will then put it in boxes lawyers have in court for purposes of receiving court documents. These are called ‘BC Boxes’ (i.e. ‘Bar Council Boxes’; we rent them from the local state Bars). So when a lawyer says he is going to court to ‘extract documents’ what he really means is that he is going to collect the documents that should have been dated, sealed and signed by the High Court. If the documents are not done so by the Court, then there’s nothing the lawyer to ‘extract’. If Mr. Leong has a local firm, it is likely he would have a BC Box. All he has to do is wait for the court to issue the documents. Any delay in the issuance of the OS is the fault of the High Court. If they felt the OS was improper in the first place they should have rejected it at the counter.
Issue (iv) really is beyond rubbish. It is incredulous. The High Court in my experience almost never troubles itself with the propriety of the Plaintiff’s authority. That is for the other party to raise as an objection during the hearing. That the High Court is supposedly concerning itself with Mr. Leong’s appointment is highly unusual as to raise a suspicion why the Ipoh High Court has taken such an unprecedented initiative. What is more how would this judicial source know whether or not he obtained sanction from the State Legal Adviser to appear for two parties? This suggests calls were made to verify Mr. Leong’s appointment and effort was made to find fault with his appointment on the High Court’s part.
All these raise disturbing questions about what exactly is going in the Ipoh High Court. The OS has been prejudged before it is even heard before an open court. Worse, these legal concerns then were leaked to the media. And the judicial source with these legal concerns is obviously is trying to send a signal to the Barisan Nasional establishment that he is ready to do their bidding because the source is quoted as saying this: ‘The fact that the plaintiffs have remained silent after the filing can be read as a move to put the burden of inaction on the judiciary. This is a political ploy. … There’s no way the High Court can proceed given the flaws in the case.’ I am for one fascinated by this judicial finding of fact of a political ploy without even so much as an affidavit!
This as demonstrated above is completely wrong and false both in law and practise. What we are seeing here is the development of a new modus operandi. Previously, the powers that be would at least allow the application to be heard and just line up their henchmen in the panel to do the job. Not so here. Now they are not even letting it come up for hearing. It is also an indication of just how poor the quality of intellect of the new breed of hencmen are by this obviously corrupt judicial source.
That this judicial impropriety is occuring in the State of the Sultan who was a former Lord President and (formerly) one of Malaysia’s revered jurists is tragic as it is ironic. Though I would like to hope that Tun Zaki, the Chief Judge and former UMNO top lawyer will investigate and punish the judicial sources for this flagrant breach of judicial ethics, I’d rather not be disappointed and not bother. So whom do you think dunnit?