Mahathir (Pic by amrfum / Wiki commons)IN October 2009, the media reported that Datuk Seri Anwar Ibrahim‘s appeal against Tun Dr Mahathir Mohamad was dismissed by the Court of Appeal on the grounds that it was filed in English.
Much hue and cry was raised over the judgement, and adverse comments were made against the Court of Appeal. The learned judges, in line with judicial tradition, have maintained a stoic silence on the matter.
Recently, the full decision was made available in law reports. It turns out that the use of English was just one of the issues resulting in the dismissal. Unfortunately, the other issues were not reported. Hence, to set the record straight, I’m writing this article in defence of the Court of Appeal decision.
Use of English
Undoubtedly, the fact that the memorandum of appeal was filed in English was a critical factor. However, this should not be surprising, given that court proceedings are required by law to be conducted in the national language. This requirement is enshrined in the Federal Constitution as well as in the National Language Acts 1963/1967. It is also set out clearly in the Rules of the Court of Appeal 1994.
A less senior lawyer or one with a less influential client may not have dared to totally disregard these provisions with impunity and yet expect the Court of Appeal to entertain their appeal. Many lawyers continue to draft in English, then translate the documents into Malay for filing purposes. Anwar’s reliance on very senior and established lawyers too familiar with the courts’ ins and outs may have inadvertently worked against him in this case.
Anwar Not signed and dated
Another reason for the dismissal was that the memorandum of appeal was neither signed nor dated.
One may wonder, are these not simple and minor errors? Actually, they are not.
A letter that is unsigned is of little value, because it is the signature that affirms the issuer’s willingness to stand behind the letter’s contents. A bank would not release a loan based on unsigned documents. How, then, can the appellate court be expected to acknowledge an appeal if it has neither been signed nor dated? The logical conclusion must be that the memorandum of appeal was not properly issued.
Technical requirements unmet
Other requirements were not met, including the failure to file a chronology of events, in contravention of Practice Direction No 3 of 1992. Also, there was failure to attach a proper index to the record of appeal, in contravention of Practice Direction No 2 of 1985.
Like it or not, the law is technical in nature, and technical compliance is critical in every lawyer’s practice. One cannot simply appear in court and start arguing. It is baffling as to why, in an appeal as important as this, the most careful attention to every technical requirement was not given.
This is especially when the Court of Appeal took note of the fact that there were at least two letters issued by Mahathir’s lawyers to Anwar’s, highlighting their failure to comply with requisite technicalities. To err is human, but to persist in error after it has been highlighted by one’s opponent must surely be the height of arrogance.
Prejudiced courts?
Of course, some contend that our courts are prejudiced against the Pakatan Rakyat (PR), of which Anwar is the leader. If that is an honest belief that is deeply held, then PR members should simply refrain from running to the courts.
Anwar with his wife Datuk Seri Dr Wan Azizah Wan Ismail and other PR leaders
One cannot blow hot and cold by running to the courts with grievances, and then accusing the courts of prejudice when decisions do not fall in one’s favour.
There is a concept known as the victim mentality. The idea is that some people prefer to remain as victims because it gives them the attention, care and affection they crave. If they were to resolve their problems, then they may have to start taking responsibility for their own failures and shortcomings instead of blaming extraneous circumstances.
I wonder, is the honourable opposition leader, Anwar, exhibiting the victim mentality? Does he in fact want to lose his court case, in order that he can continue to portray himself as having been wronged? Would that help him to command the sympathy of the voting masses?
Some people claim that the PR is on a march to Putrajaya. I’m wondering whether a new drum major may be helpful to their cause. 
Chan Kheng Hoe is reluctantly falling out of love with the Pakatan Rakyat.
Read previous Reductio ad Absurdum columns
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watchman says
So, the dismissal is still due to technical grounds. The least the Court of Appeal could have done is to ask Anwar’s lawyers to resubmit. If the rest of the civil service follows the action of the Court of Appeal, it will mean that if one submit’s an application for a passport and the application is wrongly filled because of a typo, the application for a passport will be denied. Chan Keng Hoe, you are actually writing rubbish!
makelight says
If the Court of Appeal had asked Anwar’s lawyers to resubmit their application – it would add injury to insult. The Court of Appeal has far too much respect for the former to tell them so. Keng Hoe is right.
Makeshift justice says
Like judges prejudiced by their emotions and other feelings, you betray the same. If the courts want to hear an appeal on its merits, they will do so. After all, these technicalities have no leg to stand on if the other side is not prejudiced. That is in the rules of the courts, no?
The Court of Appeal simply had no will to hear it on the merits.
And now your view about Anwar having a victim mentality – Anwar himself did not personally prepare the Appeal Records. His lawyers did. For him to want lose the court case on such technicalities, you must have evidence that he told his lawyers to file his appeal in English, not to sign and date the memorandum, not to file a chronology and index.
Like the judge will ask you in court, where is the evidence, Mr Chan?
mslam says
Keng Hoe is no expert and your views are not held by others in the legal fraternity. You are trying to be legal but indulging in political misreporting.
Please comb the judiciary library and see how many appeal cases were submitted in English and accepted for judgement.
Your article is nonsensical.