Wednesday, September 17, 2008


Alhamdulillah Mahkamah Persekutuan telah pada 16/9/2008 memutuskan membenarkan rayuan Ustaz Hashim dan sekaligus mengisytiharkan beliau sebagai ADUN N.15 Sanglang, Perlis.

Persidangan di Mahkamah Persekutuan didengari oleh tiga orang Hakim iaitu Dato Allauddin Sharif, Dato Ariffin Zakaria dan Dato' Zulkifli Ahmad Makinuddin.

Pada pendengaran rayuan tersebut Ustaz Hashim diwakili oleh saya bersama-sama Sdr Zulmi bin Sabri ( peguam dari Perlis ) dan Sdr Aqbal Shiffuddin ( peguam dari Kedah ) . Pihak SPR pula diwakili oleh Dato' Kamaluddin Said dan Puan Rozi binti Bainon manakala calon UMNO diwakili oleh Encik Jegathesan Karuppiah.

Untuk berkongsi dengan para pembaca sekalian, berikut ini adalah hujah yang saya berikan sebagai peguamcara Ust Hashim di dalam rayuan di Mahkamah Persekutuan tersebut.

May it please Yang Amat Arif, Yang Arif , Yang Arif...

1. The central issue in this appeal is whether the learned election Judge erred in law when he failed to exercise his inherent power to declare the Appellant ( Hashim Jasin ) to be duly elected and ought to have been returned.

2. In his written judgment, the learned election judge acknowledged the following salient facts and evidence :-

a. There was a mistake committed by the first Respondent in totaling the votes under regulation 25D ( 5 ) of the Election ( Conduct of Election ) Regulation 1981 ;

b. As a result of such a mistake , the third Respondent was erroneously elected and unduly returned by the first Respondent i.e the agent of the second Respondent.

c. The second and first Respondent therefore failed to conduct the election in accordance with the principles laid down in such written law and that such non-compliance had affected the result of such election by virtue of section 32 ( b ) of the Election Offences Act 1954 ( Act 5 ).

3. It is clear that the mistake was not attributed to the appellant or to the third respondent who were the candidates of such election. On the other hand , the mistake , as stated by the learned Judge in his judgment , was committed by the guardian or custodian of the election process in this country namely the Second Respondent and its agent i.e the first Respondent.

4. Despite such a glaring mistake by the second and first Respondent , the learned election judge still refused to grant the Appellant a proper and effective remedy as prayed for in his election petition that he should have been elected and ought to have been duly returned.

5. In his judgment, the learned Judge refused to grant such a prayer simply because the relevant relief had been deleted from section 35 ( c ) of the Election Offences Act 1954.

6. At the trial, the learned Judge was persuaded by the Appellant’s counsels to exercise his inherent power or jurisdiction to grant such a prayer . Unfortunately the learned Judge declined to do so as he was of the view such a power was only procedural in nature and could only be resorted to in order to prevent injustice and abuse of the court’s process.

7. It is humbly submitted that the inherent power of the court was much wider than what was stated by the learned Judge.

8. It is respectfully submitted that the inherent jurisdiction of the court includes all the powers that are necessary to fulfill itself as a court of law ; to uphold , to protect , and to fulfill the judicial function of administering justice according to law in a regular , orderly and effective matter. [ see Pacific Centre Sdn Bhd v United Engineers ( Malaysia ) Bhd ( 1984 ) 2 MLJ 143 at page 91 of the Appellant’s Bundle of Authorities ]

See also :-

a. The Motor Emporium v Arumugam ( 1933 ) Vol 2 276 [ at page 119 of the Appellant’s Bundle of Authorities ] ;

b. Kumagai Gumi Co.Ltd v Zenecon-Kumagai Sdn Bhd & Ors and another application ( 1994 ) 2 MLJ 789 [ at page 164 & 165 of the Appellant’s Bundle of Authorities ]

9. It is further submitted that the source of the inherent power of the court is derived from its nature as court of law which the court may draw upon as necessary whenever it is just or equitable to do so , and in particular to ensure the observation of the due process of law, to prevent improper vexation or oppression , to do justice between the parties and to secure a fair trial between them. [ see Ngan Tuck Seng & Anor v Ngan Yin Hoi at page 22 of the Appellant’s Bundle of Authorities ]

10. It is submitted that the learned Judge , with due respect, clearly erred in law in holding that “ the inherent power or jurisdiction of the court is a procedural rule to prevent in justice or an abuse of the process of the court. The only mention of inherent jurisdiction in law is found in O. 92 r 4 of the Rules of High Court 1980” . Therein lies its limitations, viz. it cannot be a part of substantive law . To go beyond that would be tantamount to the court and encroaching into the power of the legislature, be it Parliament or the State Legislative Assemblies .” ( see at page 32 of Rekod Rayuan ).

11. His Lordship Edgar Joseph Jr FCJ in R Rama Chandran v The industrial Court of Malaysia & Anor ( 1997 ) 1 MLJ 145 held that O.92 r.4 is a unique rule of court and serves as a reminders and confirmation of inherent jurisdiction of the court. In other words , even without O.92 r 4 , the inherent power of the High Court would still be there..” [ see at page 23 of the Appellant’s Bundle of Authorities ].

12. In Ngan Tuck Seng & Anor v Ngan Yin Hoi ( 1999 ) 5 MLJ 509 His Lordship Clement Skinner JC ( as he then was ) quoted with an approval of the abovesaid pronouncement of Edgar Joseph Jr FCJ in R Rama Chandran v The industrial Court of Malaysia & Anor ( 1997 ) 1 MLJ 145 and held as follows :-

“ It is clear from the decision in R Rama Chandran that “ inherent jurisdiction , being part of common law powers enjoyed and possessed by a High Court , of which a companies court is one, is a separate and distinct jurisdiction enjoyed by a court independent of any enabling statute or legislation… Accordingly I have no hesitation in holding that a companies court does exercise inherent jurisdiction . [ see at page 23 of Appellant’s Bundle of Authorities ].

13. It is humbly submitted that the learned Judge should have held that the election court , like a companies court, also possessed and enjoyed an inherent jurisdiction to prevent improper vexation or oppression to the appellant , to do justice and to secure a fair trial in this case.

14. As a matter of fact, the election courts , prior to this case, did exercise inherent jurisdiction when there was an absence of express provisions in the electoral laws. Unfortunately the learned Judge , with due respect, failed to consider this vital point in his judgment. Such a failure , we humbly submit, warrants this appellate interference .

15. The Appellant concedes that by virtue of the abolishment of section 35 ( c ) of the Election Offences Act, the election court seemed to have no express power or jurisdiction to grant a prayer declaring any candidate of any election to be duly elected and returned.

16. It is submitted that when the Parliament abolished the court’s express power to declare any candidate as a winner in any election , the abolishment was for a specific purpose only i.e the election court should not assume a role of the voters in any election process.

17. In other words the deletion of section 35 ( c ) of the Election Offences Act 1954 sought to prevent the election court from abusing its power i.e by declaring any candidate as a winner despite the fact such a candidate was rejected by the voters ( having lost in the election ).

18. But the factual matrix in this case was different. The voters of Sanglang had spoken. They gave their majority votes to the Appellant . In other words the voters wanted the Appellant , and not the third Respondent , to represent them as their rightful representative in the State Legislative Assembly. As a custodian of the democratic process , the Second Respondent should have respected the voters’ choice . The election court in turn must ensure that such choice was duly guaranteed and jealously protected at all costs.

19. It is submitted that in the absence of any express power for the court to grant a declaration that the Appellant to be the rightful winner of the election, the election judge ought to have resorted to his inherent jurisdiction or power to declare the appellant as duly elected and ought to have been duly returned.

20. By exercising such a power, we humbly submit that the learned Judge was not assuming the role of the voters. In fact by exercising such a power the learned Judge would have endorsed and respected the rights of the Sanglang voters who had elected the Appellant as their rightful representative thus strengthening the democratic process. [ see the case of Election Commission of Malaysia v Abdul Fatah bin Hj Haron ( 1987 ) 2 MLJ 716 on the role of the Election Commission at page 126 of the Appellant’s Bundle of Authorities ]

21. In Re West Suffolk County Council ( East Ward ) Election ( 1964 ) 108 Sol Jo 604, DC , where a candidate was disqualified and admitted it , the court did not order the case to be stated but decided to hear the case and declared the election void, notwithstanding that there was no provision for this more direct court in the Election Petition Rules 1960. [ see at page 2 of the Appellant’s Bundle of Authorities ] .

22. It is humbly submitted that the judgment of the learned election judge , with the greatest respect , represents the voice of the strict constructionist. Such a judgment as illuminatingly stated by Lord Denning in Nothman v Barnet London Borough Council ( 1978 ) 1 WLR 220 “ is the voice of those who go by the letter . It is the voice who adopt the strict literal and grammatical construction of the words , heedless of the consequences… In all cases now in the interpretation of statutes we adopt such a construction as will “promote the general legislative purpose “ underlying the provision. It is no longer necessary for the judges to wring their hands and say “ There is nothing we can do about it.” Whenever the strict interpretation of a statute gives rises to an absurd and unjust situation, the judges can and should use their good sense to remedy it, by reading words, if necessary- so as to do what Parliament would have done , had they had the situation in mind.” [ see at page 176 of the Appellant’s Bundle of Authorities ]

23. It is interesting to note here that the learned Judge had not made any finding as to the validity of the election. In other words as far as the election of Sanglang constituency is concerned, such an election was not void. As no declaration by the election court that such an election was void, the court should have, in turn , held that there was no necessity to have a by election in this case.

24. Thus we humbly submit that the learned election judge clearly erred in law by holding that there was a necessity to have a by election in Sanglang constituency. A by election presupposes that the earlier election was void which did not happen in this case.

25. We respectfully submit that as there was a glaring mistake of law committed by the first and Second Respondent thus prejudicing the Appellant’s right to be the rightful winner of the election , the election judge should have granted the appellant an effective remedy in this case. It must be borne in mind that in the present suit there was a rational nexus between the relief prayed for by the Appellant in his election petition and the dispute is seeks to resolve. [ see Syarikat Kenderaan Melayu Kelantan Bhd v Transport Workers Union ( 1995 ) 2 AMR 1601 at page 79 of the Appellant’s Bundle of Authorities ]

26. And the effective remedy in this case must be one and only namely the Appellant must be duly elected and ought to have been returned as the state assembleyman of Sanglang constituency.

Saturday, September 13, 2008

Do not turn Ramadhan into a hunger strike in September

By : Mohamed Hanipa Maidin

Whether we realize or not when we fast in the month of Ramadhan we are in fact carrying out the commandment of our Lord as stated in the following verse of the Quran

“O you who believe, prescribed for you, obligatory [for you], is the Fast, just as it was prescribed for those, communities, that were before you so that you might guard yourselves, against acts of disobedience” ( 2 : 183 )

Because of this verse fasting becomes obligatory upon any muslim. Generally we may say almost all muslims in this country believe in this commandment. Even those who fail to observe this ibadah dare not say that fasting is not mandatory. In Islam fasting falls under the category of “ma’lum minna deen bidharurah” ( things which any muslim must know as a matter of necessity ) . Thus its mandatoriness cannot be disputed let alone challenged.

Whenever the month of ramadhan comes to us, we hardly hear any argument which says that the abovesaid verse cannot be applied. It seems that all muslims irrespective of their backgrounds are united in accepting the obligation of fasting in ramadhan. Thus we do not hear various excuses such as the verse cannot be carried out as we are living in a multi racial country or by implementing it there will be chaos or worse it may impede the influx of investors.

Unfortunately the same attitude is lacking to some muslims when they are confronted with another verse in the Quran which is also placed in the same chapter. The verse reads as follows :-

“ O you who believe, prescribed, made obligatory, for you is retaliation ( qisas ), on equal terms, regarding the slain, both in the attributes [of the one slain] and in the action involved; a free man, is killed, for a free man, and not for a slave; and a slave for a slave, and a female for a female.” ( 2 : 178 )

This verse talks about the obligation of muslims to implement qisas ( the law of retaliation ) in a crime of murder. Allah promises in His book that the law of qisas ( if implemented ) will bring life to the people ( wa lakum fi al-qisasi hayatun ya ulil albab ). The Quran is not an ordinary statue. It is the book of God comprising inter alia of His promises. He will never break His promise. Muslim must believe that the crimes of murders can only be reduced if the law of qisas is implemented. Ignoring it does not bring any harm to God but to ourselves.

If the verse on al-saum ( fasting ) is directed to the believers the verse on al-qisas is also addressed to the same category of people. Logically when we claim ourselves as true believers we must treat these two verses as equally important.

Unfortunately when some muslims are told that the verse on qisas is also mandatory and this divine’s command must also be translated into practice we will hear so many excuses. Some will easily refute the applicability of this verse . They will say that this divine law is not suitable to this country as we are living in a multi racial country. Some will argue that if we implement this law there will be chaos in the country. Some will even contend that the implementation of this verse will scare off the investors thus undermining the economic growth as if the latter like to invest their money in the country where there are many murderers.

For those who dichotomize these two verses – accept the verse on saum but reject the verse on qisas- they are hereby reminded with the following verses from the same surah ( chapter )

“O you who believe, come, all of you, into submission and follow not the steps of Satan ; he is a manifest foe to you ( 2 : 208 )

This verse enjoins us to take Islam in toto . Islam is a perfect religion thus its teachings cannot be compartmentalised. A muslim is prohibited to believe in one particular verse and reject the other verses of the Quran. If he does so Allah says the muslim will be humiliated ( hizyun ) in this world and in the Hereafter he will be facing a very grevious punishment .

It must be borne in mind that both verses on saum and qisas are the explicit commands/orders ( al-awamir ) from Allah. And Islam ,as stated by Imam Abu Hanifa, is a total submission to and observance of Allah’s commands ( Al-Islam hua taslim wa al-inqiyad li awamirillah )

Imam Ibnu Qayyim made a very interesting observations on the difference between ignoring God’s commands ( tarku al-awamir ) and committing the prohibited things ( irtikab al manahi ). He says :-

“ In the eyes of God failing to implement God’s commands ( tarku al-awamir ) is more serious than committing the prohibited things ( tarku al-awamir ‘a’zam ‘ein dallahi min irtikabi al –manahi )

Indulgence in prohibited activities normally stems from one’s ignorance , negligence or carelessness. On the other hand failure to implement God’s orders stems from an act of pride or boasting oneself ( al-kibr ).

Ibnu Qayyim nicely illustrates the abovesaid points by citing two separate incidents in the Quran. One is on the story of Adam. Adam was ordered by Allah not to come near to the forbidden tree in the Paradise. Due to his carelessness he committed the prohibited acts. Nevertheless he subsequently repented and Allah accepted his repentance.

The other incident is the story of the Devil ( satan ). The satan was commanded by Allah to proscrate before Adam but the former refused to obey such a command. His refusal was not due to his carelessness. On the other hand it stemmed from his utter arrogance and superiority complex. The devil was of the view that it was better than Adam . Due to its smugness, satans’ sins will never be forgiven by Allah.

The attitude in accepting the verse on saum and rejecting the verse on qisas indicates that some muslims only remember Allah in the month of Ramdahan but forget Him on another months. To this the muslim scholars used to say

“ The most wicked group are those who do not remember Allah save in Ramadhan”

When we fast in this blessed month we must endeavor to carry out our fast as demonstrated by the prophet Muhammad s.a.w. Thus before we enter this blessing month it is incumbent upon us to equip ourselves with necessary preparations We must know the do and don’ts in this blessed month. Remember we are fasting in the month of ramadhan and not the month of september. As far as the muslims are concerned september is not significant to him at all . Those who fail to follow the shariah and the Prophet’s ways of observing ramadhan are in fact only performing a hunger strike in the month of September !!!

What are the prophet’s ways of observing this great ibadah ? To answer this question the muslims have to refer to many books written on this subjects. In a nutshell we can conclude that the way the Prophet observed the saum was by committing himself to all good deeds which brought him closer to Him. Be that as it may the Prophet spent much of his time by reciting the Quran, performing sadaqah, helping the needy and performing nawafil prayer at night etc.

Let me share some examples on how some muslims observe this ibadah . Take for example the practice of sahur.

The Prophet enjoined the muslims to perform sahur as in it lies a blessing ( barakah ). He also stated that the difference between the muslims’ fasting and the fasting of the people of book books ( ahlul kitab ) is on having a breakfast in sahur.

Unfortunately some muslims, due to their carelessness or ignorance, fail miserably to observe this practice. They used to take supper rather than sahur. As a result they will miss sahur and in turn loose the barakah.

Likewise on the practice of Iktikaf ( performing ibadah in the mosque ) in the last ten of ramadhan. The Prophet spent these periods by performing iktikaf in the mosque. This sunnah is still rarely practiced by some muslims in this country. It is rather an exception than a norm.

Hopefully there will be a drastic change in the ways muslims observe their fast in this blessed month. It is also hoped the muslim will not exit this blessed month as he entered it ( la yakhruju minhu kama dakhulu fihi ).