Sundra Rajoo is the ex-director of the ASIAN International Arbitration Centre (AIAC).
Hamid Sultan Abu Backer, a Court of Appeal Judge, filed a 65-page affidavit which revealed allegations of bullying and coercion of lawyers, constitutional conspiracy, and the purported interference of high-profile court cases in the country.
27 February 2019
AG cites lawyer for contempt over Federal Court’s decision
The Federal Court has granted leave to Attorney-General Tommy Thomas’ application to initiate contempt proceedings against lawyer Arun Kasi.
This is over statements Arun…made online, in regard to the court’s decision to expunge a dissenting judgment by Court of Appeal judge Hamid Sultan Abu Backer in the case of Leap Modulation Sdn Bhd vs PCP Construction Sdn Bhd.
Senior federal counsel Amarjeet Singh said in his application that Arun’s remarks had scandalised judges and the court.
Amarjeet cited two articles written by Arun, published on an NGO’s website, criticising the Federal Court for expunging Hamid’s judgment.
Among others, Arun had questioned why the court had expunged Hamid’s ruling in a hearing on the Asian International Arbitration Centre’s (AIAC) application to intervene in the case.
The lawyer had also questioned why the court had expunged Hamid’s order for the MACC and police to investigate the AIAC.
Arun himself had lodged a complaint against the Federal Court’s decision with the MACC.
Amarjeet said the lawyer’s remarks had implied that the judges who decided on the case were guilty of misconduct, corruption and had compromised integrity as to warrant an MACC investigation.
However, citing court transcripts and the sealed order to expunge Hamid’s (photo) judgment, Amarjeet argued that Arun’s statements were untrue.
The senior federal counsel said AIAC also made a prayer for parts of Hamid’s judgment to be expunged in its application to intervene.
He then said the expunged parts of Hamid’s judgment, which were critical of the AIAC, had not been raised by either Leap Modulation or PCP Construction in their case.
Likewise, both parties did not object to AIAC’s application.
The three-member bench led by Justice Ramly Ali unanimously granted leave for the contempt application.
The next date for the court’s sitting on the matter has been fixed for March 13.
Malay Mail @malaymail
Report: AG to start contempt proceedings against lawyer whose remarks ‘scandalised’ court
25 February 2019
Sundra Rajoo’s report against Hamid opens himself up for investigation
ASIAN International Arbitration Centre (AIAC) ex-director Sundra Rajoo had lodged a police report against Hamid Sultan Abu Backer for allegedly making false claims in his affidavit in relation to Leap Modulation v PCP Construction case.
Hamid, in his affidavit affirmed on February 14, 2019 that broke ground-shaking judicial crisis in Malaysia resulting in the cabinet announcing calls for a Royal Commission of Inquiry (RCI), had complained about attempted judicial interference in the Leap Modulation case. He was a member of the three-judges coram at the Court of Appeal in this case. He said that another coram member came to his chambers to make certain suggestions and spent extraordinary efforts to convince him to remove parts of the judgment that would be detrimental to the AIAC.
At the Federal Court level, he complained about the manner in which his judgement in the Leap Modulation case was partly expunged by the Federal Court and left the question of any interference again by that coram member to be investigated by RCI. Even prior to the affidavit, on February 9, 2019, I had complained to the Malaysian Anti-Corruption Commission (MACC) about the manner in which the expungement order was made and called upon the Bar Council to intervene into this case with a view to setting aside the expungement order. Subsequently, on February 22, 2019, for the same purpose, I lodged a motion with the Bar Council.
From the limited facts available in the media, Sundra’s allegation of “false claim” must have more to do with the complained interference at the Court of Appeal than with the complained expungement at the Federal Court stage, because the former is factual and the latter is legal in nature.
It is not clear how Sundra claims falsity of the alleged incident when the complaint of Hamid was about what transpired between that coram member and himself. This is something for police to investigate.
Sundra was investigated and arrested by MACC on November 20, 2018. Seemingly, this followed an anonymous letter addressed to MACC and others that seemingly went viral, referred to in the affidavit, which I too received, setting out various alleged irregularities. The arrest was quite immediately followed by his resignation as the director of AIAC.
Subsequent to the arrest, he claimed immunity as a diplomat and successfully defeated the remand application by MACC. The Bar Council had asked Putrajaya to waive the immunity, while I had claimed that there was no such immunity for a Malaysian within Malaysia, and which, if it were so, would be in breach of Article 8 of the Federal Constitution that renders all equal before the law – both positions in media.
In my considered view, diplomatic immunity for a Malaysian is when he is outside of Malaysia, the same as when a foreign diplomat is within Malaysia. To say that a local diplomat enjoys immunity within Malaysia, contrary to the Federal Constitution, will only promote a comical jurisprudence.
Until now, seemingly, he has not been charged. It is not clear if the investigation was proceeded with, and if the reason for no-charge relates to, the immunity claim. MACC should explain this, particularly in the context of the constitutional position that I had taken.
Be that as it may, now Sundra has made a police report asking for a thorough probe. Hence, he has opened himself up for investigation and it will be oxymoronic if he still claims immunity so that he should not be investigated but others must be investigated. His police report may, with simplicity, now pave way for MACC to continue investigation, if that was halted.
I will call upon MACC for an explanation on this matter and its stand. – February 25, 2019.
* Arun Kasi is a lawyer, fellow of Chartered Institute of Arbitrators London, and arbitrator and construction dispute adjudicator in the AIAC panel.
* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight.
Former arbitration centre director lodges report against judge
PETALING JAYA: A former director of the Asian International Arbitration Centre (AIAC) Malaysia has lodged a police report against a judge for allegedly making false claims in his affidavit.
Lawyer Baljit Sidhu said Sundra Rajoo, who resigned from AIAC last November, wanted a thorough probe as the claims made by Hamid Sultan Abu Backer were serious.
“I accompanied Sundra to the Sentul police station this afternoon to make the report,” Baljit said.
FMT cannot disclose the contents of the police report due to legal implications.
It is learnt that the report has to do with the case of The Leap Modulation Sdn Bhd and PCP Construction Sdn Bhd that went before an adjudicator in the AIAC during Sundra’s tenure.
It stemmed from a payment dispute after PCP allegedly did not receive payment for a project.
The adjudicator gave a decision in favour of PCP. Leap went to the High Court but lost.
Leap appealed to the Court of Appeal and it won on a majority decision, with Hamid in the minority.
However, Hamid had, among others, made observations on the statutory powers conferred on the AIAC and its director.
He had also directed his court registrar to send a copy of his judgment to the police and the Malaysian Anti-Corruption Commission for investigations.
PCP, being unhappy with the majority decision, applied to the Federal Court for leave to appeal while the AIAC applied to intervene as it was dissatisfied with Hamid’s remarks.
On Nov 7 last year, the Federal Court allowed AIAC’s intervention and ordered the expungement.
In the 65-page affidavit, Hamid claimed parts of his dissenting judgment were expunged and this was “unprecedented in Commonwealth nations”.
Hamid said the conduct of the judiciary in that case required an RCI to see whether a judge’s observation on public law can be expunged in the manner done by the three judges at the Federal Court.
He stated this in the affidavit filed on Feb 14 in support of lawyer Sangeet Kaur Deo’s application to declare that the chief justice had failed to defend the integrity and credibility of the judiciary over two alleged incidents of judicial interference.
Reforms – just where is the ‘reset’ button?
LETTER | The previous government fell at last year’s general election and the general public perception has been that its key politicians were largely kleptocrats who bent and broke the rule of law resulting in multi-billion dollar scandals. The new government is going after them and some have already been charged.
The governance of any democratic country is made up primarily of three active components, namely the legislature, executive and judiciary. The last is the supreme policeman and final arbiter. The point that many missed is who is the guardian of the rule of law? It is the judiciary.
The question that many failed to ask was whether kleptocracy could have evolved in a country where the judiciary was abiding by the rule of law? Kleptocracy is not known in any part of the world where judicial integrity is at its top.
A sitting Court of Appeal judge, Hamid Sultan said in a recent international law conference in Kuala Lumpur that “kleptocracy was the result of political rowdyism and judicial passivism”. He defined rowdyism as acting in breach of the rule of law and passivism as not acting according to the dictates of the oath of office. It takes two hands to clap.
In countries where the judiciary upholds the rule of law, the executive and politicians do not easily transgress. This is because any member of the public can openly speak about it, create public awareness and even bring public interest litigation to fix any intrusion into the rule of law thereby maintaining accountability through the judicial process. When accountability is lost, kleptocracy flourishes.
However, in Malaysia, the doors to public interest litigation were nearly shut with the Supreme Court decision in the case of the Government of Malaysia vs Lim Kit Siang in 1988. This marked a shift to a restrictive approach in terms of the rules of standing which a public interest litigant is required to meet before his action against the executive can be maintained.
It was arguably the start of the oxymoronic culture in our country whereby the government is elected by the public and runs on taxpayers’ money but is not really accountable to the said taxpayers. This was further reinforced by decisions in Karpal Singh’s sedition trial in 2012 and a restrictive judgement on peaceful assembly in 2015. These decisions protected the government from being effectively challenged or questioned and resulted in what we now complain about – “kleptocracy”.
Since the inception of the new government, numerous serious allegations have been levelled against the judiciary. Anwar Ibrahim maintained there was a miscarriage of justice in his sodomy cases as a ground for his claim for a royal pardon. This was no surprise to the legal fraternity given that he was awarded an unprecedented sentence for his offence.
Justice Hamid Sultan openly said in the International Malaysia Law Conference last year that he was reprimanded by a top judge for his dissenting judgment in the Indira Gandhi conversion case in her (Indira’s) favour.
He also said that after this case, he was not assigned to hear any cases of constitutional or public importance.
At one point the chief justice took it upon himself to investigate allegations that the judiciary had been compromised but the investigations were soon terminated or suspended. This led Karpal’s daughter Sangeet to sue the chief justice for allegedly failing to defend the integrity of the judiciary. In light of all this, the Bar Council has twice called for a royal commission of inquiry.
Many of the judges implicated in the said allegations are still sitting in the apex court. No RCI has been commissioned. None of them has come forward to clear any of the allegations. None of them has been charged. It is not known what investigations have been carried out and why the attorney-general has not preferred any charge until now, despite the so serious accusations.
Comparatively, when serious accusations of judicial interference were made against the ex-chief justice of S Korea, the prosecuting authority there charged him swiftly.
It will be a fallacy to put the entire blame for breaches of rule of law and for kleptocracy on the ex-government and its politicians without seeing the full picture of how it was facilitated. Pressing the “reset button” merely on the political sphere and ignoring the judiciary will not yield results. It was part of the Pakatan Harapan’s manifesto to revamp the judiciary but that has not been done yet.
The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.