Wednesday, May 13, 2009

eh wait a minute!

It is reported that the High Court's order declaring Nizar as the rightful MB was stayed the next day by Ramli Ali JCA sitting alone in the Court of Appeal. Please refer to the provision of section 38 of Courts of Judicature Act 1964 which provides as follows (emphasis added):

"38 Composition of the Court of Appeal:


(1) Subject as hereinafter provided, every proceeding in the Court of Appeal shall be heard and disposed of by three Judges or such greater uneven number of Judges as the President (of the Court of Appeal) may in any particular case determine.

(2) In the absence of the President (of the Court of Appeal) the senior member of the Court shall preside."


Ramli Ali JCA is, by ranking, among the most junior members of the Court of Appeal having been elevated from the High Court only about one month ago.

ke aku yang silap baca?

****updated: (after Puspa commented. Please refer to her comment below)

Further research reveals this:

Section 44 Courts of Judicature Act 1964 provides as follows:

"(1) In any proceeding pending before the Court of Appeal any direction incidental thereto not involving the decision of the proceeding, any interim order to prevent prejudice to the claims of the parties pending hearing of the preceeding, any order for security for costs, and for the dismissal of a proceeding for default in furnishing security so ordered may at any time be made by a Judge of the Court of Appeal.

(2) Every application under subsection (1) shall be deemed to be a proceeding in the Court of Appeal.

(3) Every order made under subsection (1) may, upon application by the aggrieved party made within ten days after the order is served, be affirmed, varied or discharged by the Court.""

From this provision, which some people say is resorted to for the interim stay order.
That may be the case.


However, the Judge of the Court of Appeal can only make, presumably an "interim order to prevent prejudice to the claims of the parties pending hearing of the preceeding" can only be made subject to there being a "proceeding pending before the Court of Appeal": the words "incidental thereto" and pending hearing of the proceeding" clearly emphasise this point. At this stage, and from press reports, there is not even an appeal filed, for that matter, there cannot be an appeal filed for a case decided in the High Court on Monday afternoon and appeal filed on Tuesday morning. There is thus no "proceeding pending before the Court of Appeal", hence this provision does not apply. It is a case of putting the cart before the horse.

For appeal from the High Court to Court of Appeal, one usually needs to file a Notis Rayuan in the Court of Appeal within 30 days of the High Court's decision. This is followed by preparation of Rekod Rayuan which includes a Memorandum Rayuan, Kronologi Peristiwa, Nota Keterangan, Alasan Penghakiman, various affidavits filed etc. The Nota Keterangan will usualy take a month or two afer that to be furnished by the High Court judge. This is followed by Alasan Penghakiman, the grounds of judgement (i,e. the one that gets published in the law reports) etc. There will be case management etc before a date is set for filing of skeletal written submisisons before hearing is fixed. All these take time.

Further, applying the principle of ejusdem generis, "any interim order to prevent prejudice to the claims of the parties pending hearing of the preceeding" shoud be construed as those interlocutory orders in similar nature with those listed, such as security for costs, etc. Does this cover a stay order which can have the effect of nullifying the earlier order issued?

9 comments:

OrangGilak 13 May 2009 at 16:03:00 GMT+8  

Seksyen 44 (1) Akta Mahkamah Kehakiman -In any proceeding pending before the Court of Appeal any direction incidental thereto not involving the decision of the proceeding, any interim order to prevent prejudice to the claims of parties pending the hearing of the proceeding, any order for security for costs, and for the dismissal of a proceeding for default in furnishing security so ordered may at any time be made by a Judge of the Court of Appeal.

sebab tu, boleh dengar sorang

Amicus Curiae 13 May 2009 at 16:05:00 GMT+8  
This comment has been removed by the author.
Amicus Curiae 13 May 2009 at 18:44:00 GMT+8  

ha dah updated to reply to your comment.

~salwaredzuan~ 14 May 2009 at 13:03:00 GMT+8  

aku saket kepala...hahahah.ni yg nk resign pehtu aku jd chef!

Amicus Curiae 14 May 2009 at 13:10:00 GMT+8  

thats what i'll be, inter alia, starting this september :D

sheera the melodramatica 14 May 2009 at 19:46:00 GMT+8  

my boss is the LA for Umno. (he is not a politician whatsoever)..
so tht day i followed him to COA for the application of stay.
there is no precedent yg smalam decide ari ni dah stay.
but the judge said it was in the state or urgency..
and to preserve the status quo pending the appeal..

sheera the melodramatica 14 May 2009 at 19:48:00 GMT+8  

stay does not nullify kan.. it only 'put on hold' the effect of the decision.. and the respondent referred to few cases where the judges have granted stay order for a declaratory order.

mrs k 15 May 2009 at 00:57:00 GMT+8  
This comment has been removed by the author.
mrs k 15 May 2009 at 01:07:00 GMT+8  

hm.whoever said it could stay a declaration.case on point.the whole thing is weird, and i (have got nothing to do with the case) feel obligated somehow to find any loophole if the learned judge's order can be defeated academically.

(baru last week dapat judgment from a corum comprising him.my favour nonetheless.)

but i value every arguments, so i thank you.

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