Friday, May 29, 2009

Aliran Desak Siasat Hakim Mahkamah Rayuan/Persekutuan Berhubung Kes Kuasa Speaker Perak

ebuah badan bukan kerajaan, Aliran Kesedaran Negara (Aliran) mendesak agar Kod Etika Hakim 1994 digunapakai bagi menyiasat hakim-hakim Mahkamah Rayuan dan Mahkamah Persekutuan yang secara terang-terangan membuat penghakiman bertentangan dengan peruntukan Perlembagaan Negara dan semangat keadilan berhubung kes kemutlakan bidang kuasa Speaker Dewan Undangan Negeri Perak yang tidak boleh dicabar di dalam mana-mana mahkamah.

Dalam kenyataannya yang dikeluarkan semalam Presiden Aliran, P. Ramakrishnan berkata apabila hakim membuat keputusan yang menimbulkan rasa sangsi rakyat maka ia juga akan menimbulkan persoalan mengenai kesesuaian mereka dilantik ke jawatan tersebut.

Aliran juga membawa perhatian kepada sebuah artikel yang ditulis oleh bekas hakim Mahkamah Rayuan, Datuk NH Chan yang mengemukakan hujah yang kukuh dan mantap bahawa hakim-hakim kedua-dua mahkamah terbabit telah melanggar Kod Etika Hakim 1994 kerana membelakangi Perlembagaan Persekutuan.

Berikut disiarkan kenyataan penuh Aliran:

Justice is becoming a rare commodity in our courts when judges of questionable ability sit in judgment. This situation raises serious concerns regarding the appointment of judges and their elevation to the bench.

In the recent cases involving the Perak crisis we wonder whether the Federal Court judges and the Court of Appeal judges who heard these cases were right in ignoring Article 72(1) of the Federal Constitution. We are appalled with their judgment which went against the grain of justice.

On what basis did the Federal Court judges rule that the Speaker of the Perak State Assembly had no power to suspend certain BN Assemblymen? In any case, it was the Rights and Privileges Committee that had suspended them – not Sivakumar. That fact fell on deaf years.
But the moot point is can these judges ignore and discard the provisions of the Federal Court in deciding their cases? Aren't decisions based on sound reasoning rooted in precedents and written law?

In a well-argued article the former Court of Appeal judge N H Chan has clearly established that the Judges' Code of Ethics had been breached by these judges who had not paid any attention to the Federal Constitution.

NH Chan has pointed out that Article 72(1) specifically states, “ The validity of any proceedings in the Legislative Assembly of any State shall not be questioned in any court.” How come this provision did not mean anything to them?

The words of this provision are written in unambiguous terms that it is not too difficult to understand what they mean and imply. It is crystal clear that the courts have no business in getting involved in this matter.

And yet, the supreme law of the country which should be the corner stone of our judicial system and justice have been totally side-stepped and circumvented to the utter disgrace of the judiciary.

In the case of the single junior Appeal Court judge, there was no basis for him to grant the stay in spite of the declaratory order of the High Court - which was the outcome of a 'well considered judgment' as stated by NH Chan - is deemed as absurd according to authoritative legal circles. The grounds for the stay have not been stated or supported by any sensible logic.

In all these cases there have been no written judgment. This is a ridiculous situation that is not fair to the aggrieved parties, to members of the public and to academia. Judges simply cannot pronounce judgments that are not backed by sound arguments, reasoned logic, precedents and written law. Litigants have a right to know how a particular judge arrived at a decision so that the aggrieved party has that fundamental right to challenge that decision. That is the only way to seek justice.

NH Chan has suggested the use of the Judges' Code of Ethics 1994.

According to him, “The words of section 3(1)(d) (of the Code) are so clear and easy to understand that we do not need any court of law to explain it to us ordinary folk. We know what the words mean. By not administering and applying the law, which in this case is the supreme law of the land as it stands the errant judges have brought discredit to the judiciary – a ground for their removal from office.”

Aliran supports the view that these judges should at least be investigated as to whether this Code has been violated.

Their continued presence on the Bench is alarming. What is at stake is justice itself when these judges sit in judgment. It would be a travesty of justice if they are allowed to occupy the hallowed positions on the Bench, if they have broken the Code or have not discharged their duties properly.

When justice is not rendered based on precedents and the Constitution, it becomes a costly and futile attempt turning to the courts for justice.


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