To My Dearest Friends and Colleagues,
For reading purposes only. Be your own judge!
I have fought against injustice throughout my life and as a practising lawyer, upholding justice when there are abuses by the judiciary and the state machinery calls for sacrifices and I have never shirk from that call to duty.
On Thursday, I became a victim of injustice inflicted by an errant Judge in the High Court of Malaya.
In this case, I was the litigant, the plaintiff suing the defendant, American Express for defamation, malicious falsehood, breach of contract and misrepresentation. It relates to a charge I had incurred for and on behalf of the Malaysian Government some years back for which the Government has not paid.
Most of you are aware of my opposition to the previous regime headed by the 5th Prime Minister. In the course of that political fight, I had to defend Tun Mahathir for which I was sued for RM 50 million allegedly for defaming one of the cronies of the regime. I counter-claimed against that crony likewise for defamation against me and exposed his corruption in conjunction with the son-in-law of the then Prime Minister, Abdullah Badawi. My defence against the RM 50 million claim was justification, the crony was corrupt to the rotten core. The case has been in limbo ever since.
Therefore, this case that came up for hearing is not as simple as it looks. There were forces ready to pounce and humiliate me at every turn.
From the word go, my three Counsels were treated without due respect.
1) My Counsel was denied the right to make an Opening Statement, a right which every litigant has.
2) I was called to testify immediately.
3) Bearing in mind that my claim was in defamation and malicious falsehood, it was incumbent on my Counsels to lead evidence on my background as a barrister and an advocate for over 30 years and my service in government as political secretary to the 4th Prime Minister. Immediately the judge pounced on me and declared everyone before her court will be treated equally and I had no need to declare my past and or the need to "impress" her. She further said that "so what if I was previously the political secretary to the Prime Minister and a senior lawyer of over 30 years experience."
4) My Counsel objected and told her that reputation is needed to be established for the purposes of a claim for damages etc. He was told to proceed and go on to the next issue.
5) In giving evidence, whenever I had to refer to an exhibit and or an admission made by the defendant in support of my answers, I was accused of "submitting to her" and she abused me as trying to conduct my evidence as a lawyer and not as a witness. Again, objections by my three Counsels were overruled and when so overruling my Counsels, banged the table with her right hand.
6) The Judge repeatedly accused my Counsels of not "doing their work" and such remark seemed to be always on cue when Defendant Counsel makes any objections. This lawyer is also the lawyer acting for the crony of Abdullah Badawi in the defamation suit for RM 50 million against me.
7) This hostile exchange went on till lunch break. I had not by that time finished with my testimony. During the lunch break and unknown to me, the judge summoned the defendant's counsel and my lead counsel to her chambers and declared that I had no case and she will dismiss my claim.
8) My Counsel informed me of this development while I was having my lunch.
9) When Court resumed, I requested an audience with the judge in her chambers with all parties present to make a formal complaint to spare her the embarrassment of a public complaint. The Judge refused my request.
10) The Judge resumed the hearing in Open Court, whereupon I addressed the Court and said:
"I have no wish to continue with the proceedings as I have no confidence in the impartiality of the Court. My three counsels have been repeatedly abused by you. You have also abused me and cast unwarranted aspersions on my character without basis. In my over 30 years of practice, no judge has ever abused me and or was rude to me. I intend to make a complaint to the Chief Justice and would now take leave and retire."
I said this in a very firm and deliberate manner.
IT IS TO BE NOTED THAT IN MALAYSIAN COURTS, PROCEEDINGS ARE RECORDED LIVE, AND AT THE END OF THE PROCEEDINGS, WE ARE GIVEN A COPY OF THE VIDEO RECORDING.
11) The judge remarked and warned me that my conduct has been recorded. To that I replied that likewise her abusive behaviour was also recorded.
12) Whereupon, the Counsel for the defendant stood up and shouted, "This is contempt! Arrest him! Arrest him!" and cited Order 51 of the Rules (which by the way does not provide such measures).
13) The Judge incited by that lawyer, directed the police officer in attendance to arrest me and place me in custody in the Lock-up at the basement of the Court Complex.
14) The professionalism of the police officer was such that he did not handcuff me, but merely invited me to follow him. In the course of our short walk to the lock-up, he said that he was stunned and was disappointed with the behaviour of the judge towards a senior lawyer.
POINT TO NOTE: IN ACCORDANCE WITH MALAYSIAN LAW, I HAD NOT COMMITTED ANY CRIME AT THAT STAGE TO WARRANT ANY ARREST, MORE SO ONE INSTIGATED BY A LAWYER. AN ALLEGED CONTEMPT AT THAT STAGE IS NOT AN ARRESTABLE OFFENCE. MORE OF THIS LATER.
15) When we reached the basement, I was invited to sit on a sofa and was not placed in a cell. He enquired whether I would like to have lunch and or refreshments and was most concerned about my well-being. I asked for permission to use my cell phone to contact another Counsel to defend me in this matter. The officer readily gave his consent.
16) I immediately called my friend and fellow colleague, Mr. Zainur Zakaria who is also the Acting Chairman of the Kuala Lumpur War Crimes Commission.
17) When I narrated the events on the phone to him, he was utterly shocked and asked me, "Was there any charge for contempt? Was a charge prepared and read out to you? Was any plea taken?"
I replied, "None whatsoever ... I am wrongfully arrested."
18) Zainur rushed to my cell from his office which was five minutes away from the Court Complex.
19) Zainur went to the Court and told the judge that I cannot be arrested for contempt when there has been no charge and no plea taken, and most importantly no conviction. Zainur knew the law as he had faced a similar experience some years ago.
20) The Judge went to her chambers, prepared the charges and resumed sitting in Open Court.
21) She read the charge to me and if my memory serves me right, this is what she read out, "You lost your cool and left the court premises. This is contempt (The video would verify the exact words). How do you plead?" I responded, "Not Guilty."
22) Zainur requested an adjournment till the next day ? Friday to prepare my defence. The Judge refused and demanded that I defend myself.
23) I told the judge that she had abused the lawyers and me and as such I am not in contempt.
24) She proceeded to convict me and asked for my mitigation. I said there is nothing to mitigate and that I intend to appeal against her decision. She then proceeded to impose sentence: RM20,000 to be paid within a week, failing which one month's jail.
The Judge also directed that the trial of my claim would continue the next day and if I am not present, she will proceed to dismiss my claim.
25) On Friday, my Counsel made an application for the Judge to recuse herself on the grounds of her behaviour on the previous day as well as having convicted me of contempt. She refused and disposed the case in my absence. My Counsel was asked to discharge themselves.
The judicial system is rotten, but I had in the past tried to reform by working within the system and held back my open criticisms.
THIS SUMS UP WHAT HAS TRANSPIRED.
I never expected to be a victim of the system. If this can happen to me, what more the poor and or unrepresented litigant.
It seems that there have been many cases of abuse by this Judge but the Chief Justice did not take any action.
MY FAMILY IS 100% BEHIND ME ON THIS MATTER.
I am therefore preparing myself to go to jail and hopefully, my incarceration would arouse the conscience of the people to stand up and fight against an injustice. An action that has been DELAYED FOR TOO LONG.
I have no intention to pay the fine. I am also considering not even appealing as I have no confidence in the Appellate Courts. Should there be an appeal, they could do a white wash and uphold the conviction to protect one of their members. The public would be confused and may even think that I was indeed wrong in opposing the abuse. They may also be cowed in the future in any opposition to similar abuse.
I appeal to all of you for your understanding and support and I seek your assistance that my plight be given the widest publicity as possible. You can do so by writing to: -
1) The Prime Minister, Dato Seri Najib bin Tun Razak
Fax: +603-88880142 or +603-88887711
Political Secretary's Fax: +603-88883971
2) President Bar Council, Malaysia
3) Chief Justice, The Rt Hon. Tun Dato Seri Zaki Bin Tun Azmi
Chief Justice Chambers
Federal Court of Malaysia
Precinct 3, 62506 Putrajaya
4) Chief Judge of the High Court of Malaya
The Rt Hon. Tan Sri Arrifin Bin Zakaria
Chief Judge Chambers
Federal Court of Malaysia
Precinct 3, 62506 Putrajaya
I thank you all for your support.
via "Sharifah Khatijah"