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Mahkamah Persekutuan dan Mahkamah Rayuan belum mengemukakan sebarang hujahan bertulis mengenai keputusan mereka bersabit krisis Perak, sehingga menimbulkan pelbagai persepsi masyarakat mengenai kewibawaan Mahkamah Tertinggi.. Ahli Jawatankuasa Kerja Pusat PAS, Hanifa Maidin berkata keputusan seorang hakim Mahkamah Rayuan untuk mendengar sertamerta rayuan Zambry Kadir menangguhkan keputusan Mahkamah Tinggi mengisthiarkan Nizar Jamaluddin sebagai Menteri Besar turut menimbulkan persoalan. Lebih-lebih lagi apabila Mahkamah Rayuan sama memutuskan untuk hanya mendengar rayuan balas Nizar atas isu sama seminggu kemudian, kata Hanifa yang juga ahli panel peguam Nizar. Berikut artikel penuh Hanifa:
How about the stay order granted by a single Judge of the court of Appeal on May 12, 2009 ? Does the stay order invalidate the high court’s decision? The short answer is a resounding no. The stay order merely bars the lawful mentri besar from carrying out his lawful duties and in turn allows the unlawful mentri besar to continue performing his unlawful duties. That is the gist of the court of appeal’s decision delivered on May 12, 2009. When the high court judge made a decision allowing all the prayers sought by Nizar in his judicial review application, the learned high court judge, to his credit, gave a reasoned judgment. Therein he discussed in great detail all the points canvassed by all parties in their respective submissions. Armed with such a reasoned decision, the people are not kept in the dark as to the reasons why Nizar won the suit. On the contrary there were glaring absences of reason as to why the stay order was granted to Zambry thus the court of appeal has kept the people in the dark. Justice demands a reasoned judgment from the court whenever it allows or dismisses any application made by any litigants. In all Perak suits which have landed in the highest court so far, neither the court of appeal nor the Federal court paid attention to this vital aspect of the court’s process namely the preparation of reasoned judgments. No judgment was prepared when the court of appeal allowed V. Sivakumar’s appeal against the decision of Ridzuan J. denying Sivakumar’s right of appointing his own solicitors. When the court of appeal dismissed Nizar’s appeal against the decision of Justice Lau Bee Lan which allowed the Attorney General’s application to refer Nizar’s suit to the Federal court, the court of appeal also failed to write any grounds of judgment. When the Federal court overturned Lau Bee Lan’s decision allowing the Attorney General’s application to refer Nizar’s suit to the Federal court, the apex court could not be bothered to prepare written grounds of judgment setting out the reasons why the high court’s decisions deserved to be reversed. The request made by Nizar’s lawyers for a written judgment was only met with the following reply by our judiciary : “ the court will not provide any ground of judgment.” It is common knowledge especially amongst the legal fraternity that the issue cropped up in the Federal court involved a very important and fascinating constitutional issue. The utter failure of the apex court to prepare a reasoned judgment in such an important case speaks volumes of judicial dexterity. When the Federal court allowed Zambry’s suit against Sivakumar, once again the Federal court did not write any written judgment. Everybody was expecting that the Federal court would prepare a reasoned decision for such an important decision. After all the Federal court disregarded the doctrine of separation of powers thus nullified the earlier five judgments given by Malaysian judges of impeccable integrity. Unfortunately no reasons were given as to why the court came to that finding. In view of the above scenario, it came as no surprise when Datuk Ramly J. failed to prepare any written judgment when he granted the order of stay favouring Zambry. To date we are unable to know what are the special circumstances necessitating the grant of such a stay order. The argument that if Nizar was not barred from acting as a lawful mentri besar , he would dissolve the state assembly is, with due respect, misconceived in law. It presupposes the power to dissolve the state assembly is vested in Nizar. Definitely such a reason does not qualify as special circumstance justifying the order of stay. Perak crisis has attracted media frenzy domestically. The lawsuit deals with many constitutional issues of great consequence. In other jurisdictions one would expect the court in particular the apex court takes pride in preparing a ground of judgment. Writing a ground of judgment is part of judicial process hence it must be seen as a sacrosanct duty and exalted task. Unfortunately the Perak lawsuit seems to suggest that this vital judicial exercise is no longer seen as a lofty act done with profound enthusiasm. When the highest courts of the land failed to prepare a judgment in such an important lawsuit , the only conclusion which may be justifiably drawn is that the courts are not fully confident to share the reasons with the people at large. The old adage that justice must not only be done but must manifestly be seen to be done has unfortunately escaped the attention of our judiciary. It is germane here to share the following sentiment of former Lord President Tun Salleh Abas when he gave the following advice to his then judicial brethren “We hope that Judges should endeavour to write their grounds of decision and take delight in this aspect of judicial work as a matter of personal pride and satisfaction and not as a burden. Failure on the part of judges to write their grounds of decision will certainly undermine their authority to insist upon magistrates and presidents of sessions court to write theirs. If the practice of not writing grounds of judgment is widespread the system of administration of justice will tumble down.” Nizar and by extension the people of Perak are not only perplexed by the failure of the court to prepare a judgment but also overwhelmed by the conduct of our judiciary in failing to fix an early date for Nizar’s application to set aside the stay order. The judiciary is bound to explain to the public why Zambry could easily get the hearing date on the same day he filed his application for a stay of execution. Zambry filed his application on May 12 and obtained the hearing date and in turn the stay order on the same date. Nizar filed his application on May 14 and was only given the hearing date on May 18 despite having a certificate of urgency. The hearing date which was initially fixed on May 18 was subsequently changed to May 21 — the same day the hearing of Zambry’s appeal. If this is not discriminatory, please do tell what is? By fixing Nizar’s application on the same day of Zambry’s appeal, the people perceive that that the rule of the game has been unduly changed. It is no longer seen as a fair game governed by transparent and unbiased umpire. The public perception is that that the umpire namely the court is seen to be more sympathetic to Zambry than Nizar. The court should have avoided doing something which led to such a negative perception. The people need to know why the court failed to appreciate the urgency of Nizar’s application as it did to Zambry so much so Nizar’s application has now become academic and fruitless. Why there is a need to have Nizar’s application heard on May 21 when Zambry’s appeal is also fixed on the same date. Like it or not, this is a mockery of the first order. Whatever reasons given by our judiciary on such a regrettable incidence, it is very hard for the people to believe that the dented image of our judiciary has been duly and fully repaired. Under such circumstances, can the people be faulted if they have misgivings about our judiciary? Sumber: tvantara.com |
Monday, May 18, 2009
Krisis Perak : Mana perginya keputusan bertulis Mahkamah Tertinggi
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