Malaysiakini Letter

Judicial shenanigans over stay order

Gerard Lourdesamy  |  Published:  |  Modified:

Something must indeed be rotten in the Palace of Justice, Putrajaya!

Chief Justice Zaki Tun Azmi and Appeals Court President Alauddin Sheriff should explain why is it that despite the Court of Appeal having 22 judges, the ousted Perak MB Mohd. Nizar Jamaluddin must wait for four days until Monday, May 18 to have his setting aside application of the stay order made by Appeals Court Judge Ramly Ali in favour of the incumbent MB Mohd. Zambry Abdul Kadir be heard and disposed off by a panel of three judges?

Is it because some people are more equal than others under the law? Zambry can have his application heard and disposed off in a matter of two-an-a-half hours after filing by a single judge of the Appeals Court but Nizar is made to wait for four days.

Is this the reform and change that the judiciary is talking about? Is this justice, fairness and due process? Is it so difficult to empanel three out of 21 judges (excluding Justice Ramly) to hear Nizar's application with the same sense of urgency and promptitude as extended to Zambry's application? Or is four days required to find the ‘right' sort of judges to hear Nizar's application?

In the eyes of the Malaysian public, this blatant double standard and partiality being displayed by the court only brings the entire administration of justice into disrepute, public contempt and odium. In my 16 years of practice, I have never heard of a case where the Court of Appeal could be moved within two-an-a-half hours to hear and grant a stay.

Usually, even with a certificate of urgency it is more like two-an-a-half months! Is this because certain lawyers with political connections to the establishment are treated differently by the judges, registrars and court staff? Does the presence of the attorney-general in a matter unrelated to public interest (since it was only a stay application between the parties inter se) guarantee an astoundingly early hearing date by the court to the extent that even Nizar's lawyers were caught off-guard and were only aware of the hearing by chance?

I doubt that by any standard this amounts to procedural fairness and due process. Access to justice is a fundamental right of any person who is aggrieved by a decision of the courts but this right should be exercised in good faith and it is for the judges, registrars and court staff to ensure that both parties are treated fairly and impartially.

Justice must not only be done but it must be seen to be done - but not just as an illusion to deceive the public into thinking that the judiciary is independent, fair and transparent, advocating change, reform and improvement when in reality everything is purely cosmetic and insubstantial when certain vested interests are involved or have to be served.

Judges and judicial officers are meant to uphold and defend the constitution and the rule of law without fear or favour even at the expense of personal interests, financial gain, recognition or reward. Are these values so difficult to follow and practice by those concerned?

I do not wish to comment on the merits of Zambry's stay application or Nizar's setting aside application. However, the judgment of the high court in favour of Nizar must be respected. A stay is merely designed to put the enforcement of the judgment or order on hold pending the disposal of the appeal but it does not nullify or vitiate the substance of the judgment or order made.

It is even arguable whether a declaratory order can be stayed especially when it involves the interpretation of constitutional provisions. Nevertheless, the constitutional and legal issues raised by both sides pertaining to the stay need to be ventilated and determined before a fair and impartial tribunal of three judges of the appeals court fully appraised of the judgment of the high court and its implications.

But it would seem that the judiciary has got off to a bad start given the glaring difference in the manner in which Zambry's application was dealt with by the court and the different treatment being meted to Nizar's application. These double standards should cease immediately and excuses such as time is required to constitute the panel; availability of judges; the cause list must be altered to accommodate the urgent hearing; and other administrative reasons are not acceptable given the urgency of the matter.

The interests of the state of Perak and her people must be respected and taken into account. The court should not be seen to be aiding Zambry by giving him time to negate the effects of the high court judgment through extra-constitutional means while Nizar is kept waiting.

There is a danger that the judgment of the high court itself may be rendered nugatory by then unless the court of appeal reconsiders the unconditional stay order granted by Justice Ramly. Nizar, too, has rights given that he is the party in whose favour the judgment was granted. Why should he be deprived of the fruits of his long and arduous litigation?

I hope that the Bar Council takes a strong position on this matter and requests for an explanation from the chief justice as to why Nizar's application is being treated differently. The time has come for the judiciary to stop getting involved in the political chicanery of the establishment and live up to its avowed role as the defender of the peoples' rights against tyranny and despotism.

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