Getting the full 11-member bench to hear the case is a
tall order
A FULL bench of judges to hear appeals at the federal court has never been granted in Malaysia’s judicial history, lawyers recall.
Some say this is not surprising. For administrative, procedural or logistical reasons, having all judges of the highest court available at the same time is considered a tall order. Some reasons: clashing dates with other trials, sick leave, or recusal by some judges if they had already heard the case at lower levels.
There is now both outcry and resignation over the Federal Court‘s decision on 5 Nov 2009 not to grant a full 11-member bench to hear the case of who Perak’s legitimate Menteri Besar (MB) is. Only five judges will hear embattled MB Datuk Seri Muhammad Nizar Jamaluddin’s appeal against the Court of Appeal‘s decision that declared Barisan Nasional’s Datuk Seri Dr Zambry Abdul Kadir as the lawful MB.
Perak’s fate decided by five
Tan Sri Arifin ZakariaThe five judges are Court of Appeal president Tan Sri Alauddin Mohd Sheriff who heads the bench, Chief Judge of Malaya Tan Sri Arifin Zakaria, and federal court judges Datuk Zulkefli Ahmad Makinuddin, Datuk Mohd Ghazali Mohd Yusoff, and Datuk Abdull Hamid Embong.
There are public doubts about the five. Chiefly, that all of them have at some point presided over hearings related to the Perak constitutional crisis.
Justices Alauddin, Arifin and Zulkefli were on the same Federal Court bench for four other Perak-related hearings.
The first was the 23 March 2009 decision to remit Nizar’s suit challenging Zambry’s appointment as MB back to the High Court instead of deciding it in the Federal Court. At the appellate level, Abdull Hamid, the fifth judge, was on the appeals bench on 20 March 2009 which upheld the High Court’s decision to let the matter be heard by the Federal Court.
NizarAlauddin, Arifin and Zulkefli were also on the Federal Court bench that ruled on 16 April 2009 that Speaker V Sivakumar had no power to suspend Zambry and six other executive councillors.
They again remitted to the High Court on 28 April 2009 Zambry’s fast track application for an interpretation of the Perak constitution to declare him as the lawful MB. Justice Mohd Ghazali was also on this bench.
On 9 July 2009, Alauddin, Arifin and Zulkefli were on the bench when the Federal Court granted leave to Nizar to appeal against the Court of Appeal judgement that Zambry was the legitimate MB. The bench, however, refused Nizar’s application for stay of the appellate court’s ruling.
But some lawyers hold the view that these prior sittings were on interlocutory matters, and not on the substance of the case. Which is clearly why Justice Datuk Md Raus Sharif, who heard the Perak MB case at the appellate level before being promoted to the Federal Court, is not on the bench. More important than a full bench, some argue, is that the case be heard fairly and impartially.
Political and constitutional implications
That, however, is precisely the concern behind calls for a full bench. Past requests to convene a full quorum have all carried significant political and constitutional implications.
Salleh AbasMost lawyers, when asked about past attempts to call a full bench, cite the 1987 Umno legal crisis for which then Lord President Tun Salleh Abas wanted a full nine-member Supreme Court bench to decide on the validity and legality of the party’s presidential election.
The attempt was stymied, however, when he was sacked as Lord President and replaced. Another sacked judge, Datuk George Seah, believed that had the full bench been allowed to sit, the majority would have ruled then Umno president Tun Dr Mahathir Mohamad’s election as null and void.
Another attempt which seems less remembered is then Kota Melaka Member of Parliament (MP) Lim Guan Eng‘s appeal to the Federal Court against his conviction of sedition and publishing false news in 1998. The DAP MP was slapped with these charges in relation to allegations of statutory rape committed by then Malacca Chief Minister Tan Sri Abdul Rahim Thamby Chik.
More recently, another request for an enlarged Federal Court bench was made by S Shamala, a Hindu woman in a custody battle with her Muslim-convert husband. She applied for nine judges to hear her case after the Court of Appeal referred to the Federal Court to determine the validity of child conversions to Islam. The hearing, initially scheduled for August 2009, has been postponed with no date yet.
Indictment
Looking back on these cases, calls for a full bench hearing are obviously made with the gravity of the implications in mind. But the gravity is more about the lack of public confidence in the judiciary than anything else.
Such requests, then, are indictments of the judiciary and not frivolous drama that Pakatan Rakyat is sometimes accused of.
AmbigaIn the Federal Court on 5 Nov, Datuk Ambiga Sreenevasan who represented Nizar, read from Salleh’s own book May Day for Justice about the Umno 1987 crisis, hoping to move the Federal Court judges to accede to the request for an 11-member bench.
“It seemed to me that one of the ways to eliminate suspicion particularly in view of the hearing of political overtones surrounding the case was to review the case before a full bench.
“This is to allow every variety of judicial opinion available to come to bear on the matters.
“No one can say I picked the judges or picked the bench,” Ambiga quoted the former Lord President.
However, the five-member bench that sat dismissed the application unanimously, without explanations.
Irreversible low
One wonders if a bench smaller than 11 but larger than five could still have been granted. In cyberspace, readers of news portals are questioning why other federal court judges not yet involved in the Perak case were left off the bench.
Datuk Heliliah Mohd Yusof and Tun Zaki AzmiThese would include Chief Judge of Sabah and Sarawak Tan Sri Richard Malanjum, and Federal Court justices Datuk Heliliah Mohd Yusof, and Datuk Gopal Sri Ram, although the latter is said to be ill.
Another example of the judiciary’s sad state is that the country’s top judge is unable to sit on such important cases. Chief Justice Tun Zaki Azmi has had to recuse himself from such cases because of his past links with Umno. The former party legal adviser even indirectly admits, in question 17 of a lengthy interview with Bernama, that his impartiality is not yet accepted!
While Zaki’s stand on principle is lauded, it does little to assuage the public that the judges hearing cases of such significance will decide impartially, free from political persuasion and in the spirit of the law, not just the letter.
With benefit of the doubt to these honourable judges, these concerns could be imagined, but public confidence is too low to persuade many otherwise. 
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