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Monday, February 16, 2009

RPK’s habeas corpus appeal : reporting live from Putrajaya

By SuaraKeAdilan English Team

The Federal Court has postponed to next Monday a decision on whether to overturn last year’s High Court ruling that freed Raja Petra Kamaruddin from detention under the Internal Security Act.

The government had appealed against the ruling and the Federal Court was expected to deliver its verdict this morning.

In a posting on his blog last night, Raja Petra Kamaruddin or RPK said it was Deputy Premier Najib Abdul Razak who ordered his detention under ISA last year and that he was also offered money to shut up but he refused.

“Chances are, I have but 24 hours left as a free man and, if I do not write this article today, I never will,” Raja Petra or RPK wrote in his latest blog posting.

“I know for a fact that it was not Prime Minister Abdullah Ahmad Badawi who ordered my detention. He was not even aware I had been detained. The order came from Deputy Prime Minister Najib Tun Razak and since I am bent on making sure he never becomes Prime Minister on 1 April 2009, I really do not blame him for wanting to get me out of the way.”

Malaysia’s Umno-Barisan Nasional-led federal government wields enormous influence over the judiciary and former premier Mahathir Mohamad has been publicly accused of judge-rigging.

The rot in the country’s judiciary system was among the chief factors that led to voters denying the Umno-BN its long-held two-thirds majority in Parliament during the watershed March 2008 general election.

Said RPK: “I was given an option. Take the money and become rich or go to jail. I refused the money and instead chose jail. This is my choice and no one can convince me to do otherwise.” [read more]

February 17, 2009 | The People’s Parliament

Latest:1:38pm : Application to recuse Justice Augustine Paul rejected. Panel back to 3 judges. Case postponed till Monday, 23 Feb 2009.

12.33pm : Imtiaz closes submissions. Nik Hashim adjourns proceedings until 1.30pm to deliver the decision on the recusal application.

12.29pm : Imtiaz refers to an authority in the bundle of the Senior Federal Counsel where a judge chose to not hear because he had previously formed a view adverse of a litigant.

Whether what RPK has written of Augustine is contemptous of court is a separate issue. The question is whether those writings may occasion a bias on the part of Augustine?

Would the public think that the Augustine suffered the taint of bias arising from those writings? How would the public, thinking Augustine to be biased, view his continuing to hear this appeal. How would this impact on public confidence in the administration of justice.

12.24pm : Imtiaz undertaking his reply.

12.22pm : Sorry, back from washroom and nicotine fix call. Senior Federal Counsel closing his arguments.

12.06pm : Imtiaz closes his submissions and Senior Federal Counsel commences his submissions.

12.04pm : Imtiaz points out that Augustine having previously formed the view that RPK is a threat to naitonal security, and in this present appeal, the Hoem Minister has states as his grounds for the detention as being that RPK is a threat to national security, the re is a risk of Augustine bringing to the hearing of this appeal a pre-disposition to the view that RPK is indeed a threat to national security.

12.01pm : Draws the attention of the two judges to the statement that was issued by the IGP in 2001 and was the basis of RPK’s ISA detention in 2001.

Augustine Paul, Imtiaz explains, then, dismissed RPK’s habeas corpus when the former was a High Court judge. That decision of Augustine was subsequently set a side by the Federal Court.

11.56am : Imtiaz emphasises that RPK’s complaint is the risk of bias, and not actual bias.

11.54am : Justice Nik Hashim appears to be agitating for Imtiaz ‘to move on’.

11.49am : Justice Zulkifli raises the question of what if a person before the court now writes nasties of the presiding judge. Does this mean that the judge must recuse himself?

Imtiaz responds to clarify that all the written material by RPK were well before these proceedings commenced.

There is no way these writings could have been contrived with a view to build a foundation for these recusal proceedings.

11.37am : Imtiaz now starts to make reference to the facts giving rise to RPK’s concerns of bias on the part of Augustine.

Imtiaz informs the judges that for a long time, RPK has been long critical of Augustine. This goes back to when Augustine was hearing Anwar’s corruption trial in 1999 when RPK was the editor of the online Free Anwar Campaign.

Imtiaz starts to detail what RPK had previously written in criticising Augustine.

Nik Hashim interrupts, inquiring how RPK’s writings might bring about bias by Augustine.

Imtiaz points out that a reasonable person could well see that the subject matter of RPK’s criticism would be angry with RPK.

Imtiaz draws attention to RPK’s reference to Augustine as part of a ‘gang of slimeballs’.

Imtiaz draws attention to a recent criticism by RPK of Augustine, where in reference to the impending charges of sodomy against Anwar, that the prosecution could do an ‘Augustine Paul’.

Imtiaz categorically states that RPK has written to categorise Augustine as a judge lacking in integrity.

Nik Hashim comments that the articles that Imtiaz has referred to were not written in contemplation of the appeal under consideration.

Imtiaz alludes to the possible perception of a third party observer that Augustine might, in the might of all that RPK has written of him and all of which Augustine may well be aware of, that Augustine may well want to see RPK sent back to Kamunting.

11.35am : Imtiaz alludes to what appears to be a lower standard set in the Judges Code of Ethics and initmates that there is a need to harmonise the various competing principles enunciated by the various decisions.

11.32am : Test of bias, Imtiaz submits, is an objective one. Does not matter if the judge says I will not biased, how will the risk of bias be viewed, objectively. Imtiaz confirms that the applicable test in our jusrisdiction is the ‘real danger of bias’.

11.27am : Imtiaz is still taking the judges through the authorities from England. He emphasises on the concerns of possible bias arising from relationships and interest that may impinge on the ability to remain impartial.

11.22am : Imtiaz commences his submissions on the recusal application.

Makes reference to the Judges Code of Ethics that was put into place for our judges in 1994.

Submits that it is trite law thta a judge is automatically disqualified where a judge has an interest in the out come of a proceeding. This must not be limitied to a pecuniary interest.

Refers to the decision of the House of Lords in the famous Pinochet case.

11.18am : Nik Hashim announces the unanimous decision of two judges. The two judges are of the view that they have the jurisdiction to hear the recusal application with a quorum of two judges and order the hearing of the same to proceed.

11.07am : Justice Augustine removes himself from the proceedings.

Imtiaz inquires if the remaining two judges may proceed. Reference is being made to the relevant legal provisions.

Imtiaz submits that the legal provision relied upon by the remaining to two judges to continue to hear does not apply.

Senior Federal Counsel called upon to respond.

Senior Federal Counsel takes the view that the provision in question applies and the remaining two judges may continue to hear the recusal application.

Imtiaz responds to Senior Federal Counsel’s submission. Takes the court to the central question whether Augustine’s removal of himself took place before the recusal application was formally called up for hearing. Imtiaz reiterates that the hearing cannot proceed with just two judges and that a sitting of just two judges would be unconstitutional.

11.03am : RPK’s called. Senior Federal Counsel introduces all counsel involved. Justice Augustine Paul from the outset says he will recuse himself from hearing and deciding the recusal application

11.00am : Proceedings resume with the judges posing queries to the Senior Federal Counsel for details of an earlier second application that was dismissed. Justice Nik Hashim delivers a unanimous decision of the court. They are of the view that the grounds raised in this appeal ought to have been raised in an earlier that was dismissed and that for that reason the bringing of the third application was an abuse of process. Appeal dismissed.

10.30am : Mano’s counsel closes his submissions. Court adjourns for a while to consider submissions.

10.27am : Senior Federal Counsel has concluded his submissions and Mano’s counsel commences his reply and summing up

10.15am : Mano’s counsel has concluded his submissions and Senior Federal Counsel representing the Home Minister has commenced his submissions.

9.45am : The three Federal Court judges come out to a packed gallery. Hindraf 5 Manoharan’s appeal is called up. This is the only other case, besides the RPK appeal, that is to be heard this morning.

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