Hastened Post

Such haste…

The on-going – can I say saga? – of JAWI versus Border’s on their charging of their staff Nik Raina Nik Aziz exposes further the kind of murky confluence that could occur in a two divergent legal system.

Blogger Din Merican has written extensively on the chronology of the whole drama from the raids on Border’s Mid Valley and Bangsar Village to the charging, the filing of a judicial review on the legality of the raid and consequent charging, the stay application, the request for a swifter hearing of the charging, the courts’ separate acquiescence to two completely conflicting sets of applications…

The three latest dates being bandied as thus as follows: hearing of an application for stay of the Syariah proceedings at the High court on July 30, new mention date for Nik Raina at the Syariah High Court on Aug 7 while the judicial review at the KL High Court on Sept 5.

Note that the original mention date for Nik Raina’s was Sept 19.

It could well be much ado about nothing as usually nothing of consequence occurs in mentions anyway which are often case-administration breathers.

Note also the original catalyst for the whole rigmarole - Irshad Manji's controversial book Allah, Kebebasan dan Cinta – is now pretty much yesterday’s news in especially the MSM.

It may well be down to PRINCIPLES.

That an offence has been committed and so the offender has to pay.

Yep. I really, really, really believe this to be it especially in the light of the many other similar instances where the application of the above PRINCIPLE is on display.

Typed straight faced. Honest.

The matter about principles also came up yesterday during the Q & A session post Professor Tariq Ramadan’s talk at ISTAC in Jalan Duta.

In fact, the start was quite a cringeworthy, but fortunately only a passing, moment: a participant stood and stated that he was asking a question from a “VVIP” who couldn’t make it to the talk / lecture who wanted to know if the Arab Spring was Islamic and if the same could occur in Malaysia.

I couldn’t quite recite Professor Ramadan’s answer in its entirety but the gist of his answer was that the majority of the protestors were in fact muslims, young and old, men and women.

And the principles are work are those which are Islamic in essence – good governance and justice, for example.

I’m paraphrasing, of course, as the good Professor - who is banned in a whole list of countries for speaking his mind out loud – provided a far more comprehensive view than I could ever articulate, ever.

As to whether something similar could occur here, his answer was simply: “I do not know. It is for you to tell me.”

VVIP, huh? Usual suspects, I presumed.

Coffee Tablogs

A line from the Federal Court’s on Nizar versus Zambry decision:

“..terbuka untuk pemohon (Nizar) untuk membawa usul tidak percaya terhadap responden (Zambry) di LA (DPR) atau membuat representasi untuk Kebawah Duli (Baginda Sultan Perak) bila saja jika ia berfikir bahawa responden tidak menikmati sokongan daripada majoriti ahli LA..”

What exactly do these words mean?

Long, long ago, I learned of two Latin phrases – Ratio Dicedendi and Orbiter Dicta.

Both are concerned with legal decisions, but they are of different weight.

Ratio Dicedendi is the rationale behind a decision, while Orbiter Dicta are statements said in passing on certain issues which does not per se affect or influence the ultimate ruling.

The first is binding and sets a precedent, the latter does not.

What of the above remark by the Federal Court in the case? A plain reading seems to suggest it is mere Obiter Dicta as it doesn’t seem to have any weight on whether or not Nizar could succeed in his action against Zambry.

Bar Council’s Edmund Bon – who is also Nizar’s counsel – says it is an “escape clause” for the applicant.

It does suggest routes that could (should?) be taken when a government no longer seems to command the majority.

Two methods are spoken of: the motion of no confidence and a representation before the Ruler.

The first is quite common, but in reality, more a move to embarrass than to really do what it is supposed to be doing.

A move for such motion is usually proposed through the Speaker who will invariably be from the Government of the day. Enough said, I suppose.

More effective are those impromptu (technically speaking) vote of no confidence: Remember the Budget 2010 debacle when the Government scrapes through with only three (if I am not mistaken) votes?

That is one way of doing so without having to even raise such a motion in the first place.

Hypothetically, though, the government of the day can call such motion against itself and then represent to the Ruler dissolution of the State Assembly from loss of majority.

Will anyone do so, though? Nizar argued that he had attempted the same in his case.

In the MI article, Bon suggested the following to be truer to (political) reality: “If a Mentri Besar thinks he has lost the confidence already, he is never going to ask the Sultan to dissolve the Assembly anymore because backdoor dealings will be a better route to maintain or seize power.”

More curious bit is the part about “the applicant”.

WHO exactly did the decision mean with respect making representations to the Ruler? The opposition? The prospective would-be Menteri Besar? The Speaker? Whosoever thinks that the majority is lost?

While Orbiter Dicta may well be opinions / legal views said in passing, but at the same time, they are persuasive in nature.

These are hypothetical suggestions but still very much based on legal applications, which later decisions can quote as persuasive views.

Weird, this one.

PS: As I am not a legal practitioner or a current student at law or even someone remotely related to the practice, the above are rants from one with the most basic of legal knowledge.

In other words, coffee table talk stuffs.

Very Much Ado

In the New York Times: The Lord Justice Hath Ruled - Pringles Are Potato Chips.

Now that is the kind of headlines I would love to see more.

I wonder if the writer (One Adam Cohen) enjoyed fleshing out the details as I did reading them.

A gist: There was apparently a legal battle on the status of Procter & Gamble popular Pringles as to whether they are categorically potato chips.

In the UK, potato chips (or crisps) are taxable.

P&G’s argument is that since Pringles are essentially potato flour, corn, rice and wheat (and here I thought it was all potato, sodium and what vaguely resembles taste), it’s therefore NOT potato chips.

The British Appellate Court, as it turns out, accepted this argument, declaring: Pringles is, shall we say, potato chips Lite.

(Anyone thinking of getting their hands on the judgment should reconsider especially since Mr Cohen himself said that it’s “a convoluted opinion that considered four interpretations of the law before ultimately rejecting three of them.”)

The Supreme Court pooh poohed the Lower Court's findings, deciding instead that “it’s a matter of overall impression.”

Good one, that.

Bad one for P&G, though, as the decision meant they owe back taxes of some US$160 million.

Off and on, we do get our fair share of “interesting” headlines here back home in the legal culinary sort, but they are hardly those which require our Justices to crack their brains on.

Thanks to the above decision, I will take note in the mountains of documentations that had gone into deciding Pringles are in fact potato chips every time I take a sinful bite of such crispy delights.

(Wonder how much fun the lawyers had - and the money made - in battling a case this significant...)

Had the case still in adjudication I may well be committing Sub Judice for saying “crispy”.

Legalese. Just love ‘em.