Abdul Rahman bin Sebli, CJSS - THE DISSENTING JUDGE

 The Federal Court's Nik Elin judgement has gone around. The wonders of information technology.  I was glancing it and read some of the judgement by Chief Justice Tengku Maimun binti Tuan Mat. The very first paragraph after the 'Introduction' caught my attention:

IN THE FEDERAL COURT OF MALAYSIA
(APPELLATE JURISDICTION)
PETITION NO.: BKA-2-05/2022(D)

Between
1. Nik Elin Zurina binti Nik Abdul Rashid
2. Tengku Yasmin Natasha
binti Tengku Abdul Rahman ... Appellants

And

Kerajaan Negeri Kelantan ...Respondent

Coram:

Tengku Maimun binti Tuan Mat, CJ
Abang Iskandar bin Abang Hashim, PCA
Mohamad Zabidin bin Mohd Diah, CJM
Abdul Rahman bin Sebli, CJSS
Nallini Pathmanathan, FCJ
Mary Lim Thiam Suan, FCJ
Harmindar Singh Dhaliwal, FCJ
Nordin bin Hassan, FCJ
Abu Bakar bin Jais, FCJ

JUDGMENT OF THE COURT


INTRODUCTION

[1] My learned brother Abdul Rahman Sebli, CJSS is dismissing the petition on the sole ground that the petitioners had no locus standi to file the petition. The other members of the Coram have seen my judgment in draft and have expressed their agreement with it. This is the majority judgment of the Court.

(OSTB : The very first line of the Chief Justice's written judgement refers her "learned brother" Abdul Rahman Sebli, the Chief Justice of Sabah and Sarawak's dissenting view that the petitioners had no locus standi to file the petition. Why not? 

Have you heard the phrase the "law is an ass". People have written books about this.

And here is an ass who says he is the law.

Well the law can be an ass. 

The concept of the law and being law abiding is perhaps the greatest invention by the human mind to govern our being alive. The greatest thing about the law, which makes the law such a humongous force in modern human civilisation is that the law can be changed. It is not written in stone. Nothing is written in stone - something I came to realise quite late in life (but thankfully not too late though). 

If we have written bad laws then just change it. So this is not just about Nik Elin's petition or about the decision of the Federal Court. It is about we as human beings living in societies which have the basic common sense of righting wrongs and then moving forward. Why persist in the wrong? Why be an ass ?

Ok before I go further here is paragraph 12 of the Chief Justice's written Nik Elin judgement. Please note the yellow highlight.

JUDICIAL INDEPENDENCE AND PUBLIC CONTROVERSY

[12] Before proceeding into the issues raised in this petition, we must first note our observations that of late, certain decisions of the Judiciary especially of this Court have been called into question on grounds other than the reasons for those decisions. Our judgments are publicly available and it would behove the public, including politicians, to read them and all persons are free to criticise or comment on our judgments on legitimate and educated grounds.

I really like this part :  it would behove the public, including politicians, to read them and all persons are free to criticise or comment on our judgments on legitimate and educated grounds.

Thank you Yang Ariff. So that is what I am "behoving" now - as per the Chief Justice's remarks, I am commenting on the Federal Courts judgement. I must add here that the Chief Justice Tengku Maimun binti Tuan Mat has become a hero of the country. Besides her learning, the calmness in her judgement and in her manner brings back faith in a system of justice whose public perception has indeed been badly battered over the past years.

YAA Tan Sri Dato Abdul Rahman bin Sebli, the Chief Justice of Sabah and Sarawak was the sole dissenting opinion in that 8-1 majority decision by the Federal Court.

He was also the sole dissenting opinion in the Federal Court's decision against Najib Razak's appeal (the one that sent Najib to jail). YAA Abdul Rahman Sebli ruled in favour of Najib.

PETALING JAYA: Najib Razak had no legal representation when a Federal Court panel heard and dismissed his appeal in the SRC International corruption case, according to a minority judgement by Federal Court judge Rahman Sebli.

“Justice is not only about the guilt or innocence of the accused person. It is also about according him a fair trial,” said Justice Rahman in a 78-page minority judgment released today.

OSTB: Macam inilah Yang Arif. So I learned a new trick from your dissenting opinion in the Najib appeal. Lets say I have been charged in Court with all those crimes that were committed by Najib. PLUS I have already been found guilty by two other Courts namely the High Court and the Court of Appeals. Not only have I been found guilty by TWO Courts but I know I am guilty.

How do I buy more time - legally and within the law ? How do I delay the inevitable 'going to jail'? 

I have an idea. I fire my legal team. I tell the Federal Court that I have fired my legal team and that I need time (say three to six months) to hire a new set of legal counsel. Otherwise I will not get a fair trial. So good judges like you will give me more time to do whatever it is I wish to do next. 

Then there can be a Round Two. Lets say in Round Two it is my legal counsel who resigns. He says he cannot represent me anymore. Again I can ask the Court to grant me more time (say another three to six months) to hire a new set of legal counsel who will need time to prepare the case bla bla bla.

So I can legally buy more time. Actually it can go on for some time. 

My other question is - during all these postponements and delays who pays the electricity bill, the water bill and who pays your salaries as officers of the Court? The public pays. You are paid using taxpayers funds. My money.

So Yang Ariff, me being me, may I suggest something really OutSyed The Box? Would it expedite the service of justice in the country if the judges were required to pay part of the electricity bills and the water bills in the Courts? Beyond a certain minimum time frame. Say if a case stretches beyond SIX MONTHS then the Court officers, including the Judges, must pay a portion of the water and electricity bills for the Court complex? You know to ease the burden of the already suffering taxpayers?  What do you think? Is that a funky idea? Am I being an ass? Or is it only the law that can lay claim to that pre-eminent title?

May I also say something about locus standi? In the 1980s (when I was in my twenties) In the late 1980s Tan Sri Lim Kit Siang filed a petition against the construction of the new North South Highway.

The Court turned down Tan Sri Lim's petition on the grounds that he had no locus standii !! I thought that was a really weak judgement. Here is a highway that would run 500 miles north to south down the entire country, cutting across villages, towns, cities and finally asking the public to pay tolls for about 20 years or so. (Now it has been extended to 2038 - 50 years !!) And you are telling the public, especially a Member of Parliament, that they have no locus standii to challenge the project in a Court of Law?  I think the learned judges seriously erred in their grounds of judgement. 

I would have said something else.

I personally did not agree with Tan Sri Lim Kit Siang's wanting to obstruct progress and development in our country. But to say that he had no locus standii to challenge the project in Court was wrong. 

He had issues about the cost of the project (that it was overblown and in the entire manner of the award of the road project).  But the cost of every single government project is most likely overblown and the manner of its award, especially direct negotiation projects, can all be disputed. So if every government project can be disputed along those lines there will be no government projects and the country will never develop. This is what I would have said.

If there is corruption or abuse of power then go and report to the MACC or to the Police. It is their job to investigate corruption. 

And that is also why we have general elections. If nothing is done about the wrongdoings then the public (especially the taxpaying public) has the right to vote for another government who hopefully will do better. Justice can be served through the democratic process. The target is the fair service of justice.

Coming to Nik Elin's judgement to say that she has no locus standii (Abdul Rahman Sebli's sole dissenting opinion) is equally a non starter. 

She was born and raised in Kelantan. She has family and property there. But more importantly she is a citizen of Malaysia and this is a matter of major public interest. It will affect similar religious enactments throughout the rest of the country.

But the biggest reason (in my view) is that Nik Elin is a taxpayer. We all pay taxes. And like it or not, the taxes that are collected by the Federal government find their way to all across the country even into Kelantan. There are hundreds of Federal government departments or federally funded organisations operating in Kelantan (Police, Army, hospitals, schools, Customs, Immigration, Bomba, Railways, airports, roads). These are all paid for by the Malaysian taxpayer. 

And certainly any action of administration by the State government, which can only be carried out through legal acts of the State Legislative Assembly (meaning State laws lah) rely on public funds used in Kelantan. Its our money.

Nik Elin is not challenging the operations of say some wayward private m adrassah in Kelantan. She is not challenging the internal practises of say some private company in Kelantan. That may justify no locus standii.

But this is a major issue of public interest. It is public interest litigation. Nik Elin is a member of the public. And a taxpaying member of the public.

There are no restrictions on any Malaysian citizen from travelling to, working or living in Kelantan. Any Malaysian can go to Kelantan tomorrow, start a business there and live there forever. So whatever State laws they have in Kelantan will affect all Malaysians. So we all have locus standii not just in Kelantan but anywhere else in Malaysia.

Just like Tan Sri Lim Kit Siang had locus standii in a highway that spanned 500 miles north to south of the country.

To conclude the laws of Malaysia need a serious update. We have outdated laws (like the Libel laws), archaic laws (like the Sedition Act) plus so many other laws that are basically Jurassic Park. All these outdated laws need to be abolished, updated or rewritten to bring the whole country forward and onto the same page. 

We are really late and out of touch with regard to our outdated laws. 

The views expressed are those of the writer and do not necessarily reflect those of MMKtT.