Ex-cop on death row loses final appeal

A former policeman on death row failed in the Federal Court today on an application to review a question of law as to whether his conviction could stand, on grounds that judgments from the High Court, Court of Appeal and the apex court were all in English.

Appearing for the policeman Harcharan Singh, lawyer Karpal Singh submitted that the judgments should have been in the national language, or parts of it should have been in Bahasa Malaysia.

The Federal Court handed former lance corporal Harcharan, 46, the capital punishment on Sept 9, 2009, after reversing his acquittal for the murder of a Pakistani businessman 16 years ago in what was said to have been a 'love triangle' case.

Harcharan and his and his Indian national cousin Jasber Singh had been free for nearly five years, after the Court of Appeal overturned their conviction by the High Court, but he had to face the gallows after the Federal Court allowed the prosecution's appeal.

On Nov 15, 2000, the High Court in Shah Alam convicted Harcharan and Jasber Singh of murdering Shaikh Abdul Rub Samdani Siddiqi at a house in Taman Desa Aman, Sungai Buloh, Selangor, at 10.30pm on March 1, 1996.

A five-member Federal Court bench led by Court Appeal president Alauddin Md Sheriff dismissed the review application.

"This case is not the proper case for this court to invoke Rule 137 of the Federal Court Rules, or its inherent jurisdiction to review and hear. Possibly, you can try to address this issue (of language) at another forum," he said.

The other judges sitting with Justice Alauddin in the unanimous decision were Chief Judge of Sabah and Sarawak Richard Malanjum, Federal Court judges Hashim Yusof and Abdull Hamid Embong and Court of Appeal judge Hasan Lah.

Apex court has inherent jurisdiction

However, what is seen as important in the matter is that by the unanimous declaration of the five judges today, the apex court has somewhat restored its power to review its own decisions.

There has been confusion and inconsistency in the past as to whether the apex court has the power to review a decision of another panel of the court.

This was when the Federal Court decided to close the door on the Felda Kemahang 3 case with a three-judge panel rejecting a review of the appeal, and in the Abu Dalip case as well.

Karpal (left) pointed out in his submission that Alauddin and Hashim were in the bench that had in the past refused to grant a review of another panel's decision.

"This is a proper case for the Federal Court to consider and review as there has been serious contravention of section 8 of the National Language Act, which came into force in 1963, and was amended in 1967.

"Proceedings must include judgments of the court and must be mandatorily written in the national language," the senior lawyer submitted.

He wanted the entire proceedings in the High Court, Court of Appeal and Federal Court to be set-aside and declared null and void, arguing that they were not supported by law as all judgments must be made in the national language.

Karpal had told the court that the National Language Act required all court proceedings be conducted in the national language, or partly in Bahasa Malaysia.

Citing opposition leader Anwar Ibrahim's suit against former premier Dr Mahathir Mohamad at a Suhakam conference as a basis, where the judgments of the High Court and Court of Appeal were also in English, he had wanted to revisit the case.

DPP Ahmad Bache, submitted that the Federal Court should not consider this case for review as the grounds to support the review application were not raised at the appeal stage before the Federal Court.

Commenting on today's decision outside the court, Karpal said despite losing the case, the decision had cleared the air that the highest court could act on its inherent jurisdiction to review a case.

"This panel ruled that my client's case was not fit and proper for review. But at the same time, it also means the five-member bench acknowledged that a review can be granted under certain circumstances.

"Previously Alauddin and Hashim had departed from this view. However, they are unanimous in saying a review can be granted, but not in this case. I have asked the bench to write their judgment to clarify this matter once and for all," he added.