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Showing posts with label Chief Justice. Show all posts
Showing posts with label Chief Justice. Show all posts

Sunday 15 July 2018

Judged on merit and nothing less

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It’s official: The Yang di-Pertuan Agong Sultan Muhammad V presenting the letter of appointment to Malanjum at Istana Negara. Looking on is Prime Minister Tun Dr Mahathir Mohamad. — Bernama
Judicial diversity and meritocracy are inseparable in order to win the faith of society. The appointment of Tan Sri Richard Malanjum, a Sabah-born Kadazandusun, as the top judge is a first for a non-Malay Malaysian and is welcomed as a major step towards winning greater confidence in the Judiciary, CHELSEA L.Y. NG writes.

IT’S a fairy tale come true for some Malaysians banking on a better Judiciary grounded on merits when news of Tan Sri Richard Malanjum having been sworn in as the ninth Chief Justice of Malaysia started to trickle down to the media late Wednesday evening.

Just several hours before that, the witty Malanjum had brushed off talk of him being selected as the next top judge.

“Itu cerita dongeng (It’s a fairy tale),” he told reporters in Kuching before walking off quickly.

But by then there were already some pictures of him attending an alleged rehearsal session being circulated among a few privileged ones.

Well, going by some of the not-so-welcoming responses from those who thought that the position was reserved for only Malay judges, the initial hush-hush circumstances were understandable.

But we cannot really fault those who think the positions are reserved purely for Malays. If you have only been exposed to Chief Justices (CJ, top post) and Chief Judges of Malaya (CJM, top three) after 1994, then you might be forgiven for thinking that the posts are for Malaysians of Malay origin only (see lists of LPs and CJs).

In the last two decades, top posts had been taken by Malay judges but if we look further back, the situation was much different prior to 1994. There used to be a good mix of judges from different races at least for the CJM post, which was then known as the Chief Justice of Malaya (a No.2 post then and not to be confused with the current CJ post, which is a top post). The top judge was known as the Lord President (LP) then or Lord President of the Supreme Court in full.

The LP position was created after the abolition of appeals to the Judicial Committee of the Privy Council in 1985.

Below the LP were the Chief Justices of the High Courts of Malaya and Borneo.


In 1994, the LP was renamed CJ when the Supreme Court reverted to the name of Federal Court, which was the name used prior to 1985 but with the Privy Council as the highest authority.

In 1994, Parliament amended the Federal Constitution and approved a reorganisation of the court system and significantly set up the Court of Appeal as the second highest court and renamed the highest court Federal Court (previously Supreme Court). After 1994, there was a new No.2 position created called the President of the Court of Appeal. The CJM hence moved to the third position.

For senior lawyer Datuk Roger Tan, judicial diversity is an essential element.

“It is pivotal in creating confidence in a multi-racial society. Diversity can be on the grounds of race, religion and gender.

“In Britain, they just had the first female President of the Supreme Court in hundreds of years,” said Tan.

Lawyer Fahri Azzat said there is nothing in the Constitution that demands that a Chief Justice, President of the Court of Appeal or the Chief Judge of Malaya must be of Malay heritage, or dictates that the racial composition of the Federal Court or even the Court of Appeal contain a majority of citizens of Malay heritage.

In fact, Article 123 of the Federal Constitution which deals with the qualifications to be a High Court judge and above provides the following:

A person is qualified for appointment und

er Article 122B as a judge of the Federal Court, as a judge of the Court of Appeal or as a judge of any of the High Courts if – (a) he is a citizen; and

(b) for the 10 years preceding his appointment he has been an advocate of those courts or any of them or a member of the judicial and legal service of the Federation or of the legal service of a State, or sometimes one and sometimes another.

For Fahri, that a persistent racial pattern at the appellate courts continues in the Judiciary suggests that race is a more influential factor than abilities or merits when it comes to the appointment and promotion of a judge.

Fahri even wrote about it in 2010 on the LoyarBurok website about the racial composition of the Judiciary.

“Any litigator who is in the thick of litigation practice in our civil courts will acknowledge that at the level of top senior counsel, the composition is the opposite of the nation’s racial population.

“Where top senior legal counsel are concerned, the ratio of Malaysians of Indian heritage are highest as compared to those of Chinese heritage who come in second as compared to those of Malay heritage who have the lowest numbers. That is how I know it to be from experience and conversation,” Fahri wrote then.

However, on Malanjum’s appointment, Fahri has this to say: “I think it is a step or start in the right direction. Whether it closes the gap in terms of judicial diversity and meritocracy remains to be seen with subsequent appointments of both the top judges and the High Court judges.

“I think it will be the starting point for the public to renew its faith in the Judiciary but that again remains to be seen from their judgments, judicial statements and the Judiciary’s actions collectively.

“Just as a swallow does not a summer make, a few judicial appointments do not guarantee rejuvenation of the Judiciary,” he said, adding that these positive developments if seen through over the long term will help foster faith and trust in the Judiciary and the administration of the justice system as a whole.

Retired Federal Court judge Datuk Seri Gopal Sri Ram said the appointment is definitely a welcome move and expected to improve the Judiciary.

“This is the first time we have a non-Malay being made a top judge. Prior to this we had non-Malay judges being appointed to the second highest positions. But that was before 1994.

“From the time of independence until then, no one had looked at the appointments on racial or religious angle. Only in recent times did people start to do so.”

He named a few prominent top judges then such as Tan Sri H.T. Ong, Tan Sri S.S. Gill and Tan Sri Gunn Chit Tuan.

“Richard’s appointment verifies the oneness of Malaysia. That there is only one Malaysia. That there is no East Malaysia or a West Malaysia,” said Sri Ram.

Sultan of Perak Sultan Nazrin Shah had in his special address at the book launch of Tun Arifin Zakaria last year mentioned a valuable quote by his father Sultan Azlan Shah, who was also a respectable Lord President.

“I quote, ‘The rules concerning the independence of the judiciary ... are designed to guarantee that they will be free from extraneous pressures and independent of all authority, save that of the law. They are, therefore, essential for the preservation of the Rule of Law,” he said.

The Sultan hit the nail on the head. Justice and judges should be free from any extraneous pressures and everything has to be based on the merits of the law.

The Ruler had on the same occasion called on Federal Court and Court of Appeal judges to write dissenting judgments if they do not agree with the majority of the Bench.

“Sometimes, the brave dissenting voice is transformed into law. A classic case is that of Brown v. Board of Education 347 US 483 (1954) when the US Supreme Court gave weight to the spirit of Justice Harlan’s dissenting voice in Plessy v. Ferguson 163 US 537 (1896).

“As a result, and in a historic judgment, then-chief justice Warren held that racial segregation in public schools constituted a violation of the US constitutional guarantee of equality of rights,” he said.

The Sultan added that judges should be free to express reasons in their judgments as they thought fit, and in other words, for the Rule of Law to flourish, courts and their participants should be allowed to express a variety of ideas and principles.

In the case of Malanjum, some critics even brought up the point that he was not qualified to be made the Chief Justice because of his dissenting judgments in the case of Lina Joy and the use of the Allah word in the Bible.

In Lina Joy, she lost a six-year battle in 2007 to have the word Islam removed from her identity card after the Federal Court dismissed her appeal in a majority decision.

In his dissenting judgment, Malanjum said the department responsible for issuing identity cards should have just complied with Lina Joy’s request to remove the word from her IC. He accused the National Registration Depart­ment of abusing its powers.

“In my view, this is tantamount to unequal treatment under the law. She is entitled to an IC where the word Islam does not appear,” Malanjum said.

In the second case, the Federal Court was divided again with Malanjum dissenting and arguing that the Constitution must remain the supreme law of the land.

In his column, constitutional law expert Prof Dr Shad Saleem Faruqi had also written about Malanjum’s boldness in voicing out his stand and daring to dissent.

According to Dr Shad, in PP v Kok Wah Kuan in 2008, the Federal Court had in a majority judgment “mocked the doctrine of separation of powers as having no legal basis” in the Constitution.

The judgment went further to say that the power of the courts was limited to whatever Parliament bequeathed.

“Fortunately, there was a bold dissent from Malanjum, our Sabah and Sarawak Chief Judge, who insisted that separation of powers and judicial independence are firm pillars of our constitutional edifice.

“He rejected the view that ‘our courts have now become servile agents of a federal Act of Parliament and that the courts are now only to perform mechanically any command or bidding of a federal law’.

“Justice Malanjum was eminently correct on both scores. A Consti­tution is not mere words written on paper,” Dr Shad wrote in his column.

These words by the eminent professor were enough to back Malanjum as a strong guardian of the rule of law and is definitely fitting for the grand position of a Chief Justice.

Enough said, time will tell if we have taken the right path.

Related story:

Malanjum wants regular meetings with the Bar


Sunday 31 July 2016

A-G should not lead both services, it's long overdue!

Otherwise, it will create a negative perception of judiciary's independence, says CJ



https://youtu.be/rKJy0vpNVlA

KUALA LUMPUR: The Attorney-General must stop leading the Judicial and Legal Service Commission to ensure that the judiciary can be seen as a truly independent body, says the Chief Justice.

The head of the judiciary, Tun Arifin Zakaria, said that it would be a conflict of interest for the A-G to lead both services as he was a member of the Executive, when judicial officers comes under the judiciary.

In a democracy, the three branches of Government – the Legislative, Executive and Judiciary – must remain independent of each other.

“If the A-G continues to lead both services, I worry it would create a negative perception of the judiciary’s independence, an opinion many parties share,” said Arifin in a speech at the Judicial Officers Conference here yesterday.

The Chief Justice’s call is in line with the universal concept of judicial independence, whereby the courts should not be subject to undue influence from other branches of the Government or persons with partisan interests.

In an immediate reaction, Attorney-General Tan Sri Mohd Apandi Ali confirmed that the A-G’s Chambers (AGC) had received the proposal and was still studying it from the point of view of the Constitution and from a historic perspective.

“We will come up with the AGC’s views and discuss it at our next Legal and Judicial Service Commission’s meeting before the end of the year,” he told The Star.

Currently, the Judicial and Legal Service Commission managed the careers – from appointing, promoting, transferring and disciplining – of its members, which includes judicial officers like Sessions Court judges and magistrates, and legal officers like deputy public prosecutors and senior federal counsels.

Later, during a press conference, Arifin said people who disagreed with a judgment might say the magistrates were toeing the line with the A-G’s Chambers as they were effectively the same body.

“Imagine if a senior officer from the AGC or even the A-G himself was prosecuting. Lagi menggeletar (they’ll be even more nervous) to handle the case,” he said.

Arifin said Public Service Circular 6/2010 which made the A-G the chief of the judicial service was a contradiction to an existing decision by the Federal Court and no longer relevant

He pointed out that when the Commission was formed, the two groups were placed together as there were only a few hundred staff members. However, there were now 636 employees in the legal service and 4,787 serving in the judicial service as of April this year.

“The time has come for the judicial service to be lead by an someone from within its ranks,” he said, adding that such a candidate would be better equipped to run the service.

Arifin suggested that the Chief Court Registrar lead the judicial service while the Attorney-General lead the legal service.

The separation would also stop judicial officers and legal officers from being transferred between departments, unless the move is approved in writing by their chiefs.

However, Arifin said transfers should still be allowed, with due process, to ensure staff get experience as both judges and prosecutors.

Chief Registrar Datin Latifah Mohd Tahar, who also attended the conference, told reporters the paper on the proposal had been submitted to the Commission and the matter could be decided on within the year.

In 2006, the then Chief Justice Tun Ahmad Fairuz Sheikh Abdul Halim said the Judiciary intended to propose to the Government to abolish the Judicial and Legal Service Commission.

He added that magistrates and Sessions Court judges should be absorbed into the judiciary, fearing that there would be interference by “unseen hands” if they remain as civil servants.

by Chelsea L.Y. Ng and Qishin Tariq The Star/Asia News Network


It’s about time, says thelegal fraternity of proposal




PETALING JAYA: The legal fraternity applauded the Chief Justice’s proposal for greater separation between judicial and legal services, calling it long overdue.

Former Court of Appeals Justice Mah Weng Kwai (pic) said the proposal finally presented a clear demarcation between the judicial and legal services.

“It has been a combined service for the longest time, since before I joined the service in 1973,” said Mah, who started his career as a magistrate before becoming a deputy public prosecutor and then senior federal counsel.

Responding to the Chief Justice’s suggestion that officers would still be allowed to be transferred between the services, Mah said it should be taken one step further with both services completely independent and non-transferable.

Former magistrate Akbardin Abdul Kader said, if implemented, the move would ensure former DPPs were not biased when they were elevated to the bench.

“Hence, they will remain as DPPs until they retire and so the same for judicial officers,” he said.

Malaysian Bar president Steven Thiru said the Chief Justice’s concerns were valid and deserved due consideration.

He said the fact the Attorney-General was a member of the commission could open the judiciary to questions in any decision in favour of the prosecution.

He noted that the proposal would appear to require a constitutional amendment that would place Sessions Court judges and magistrates under the sole jurisdiction of the judiciary, and no longer under the Commission.

“This strengthens the concept of separation of powers that vests judicial power in the judiciary and requires the exercise of those powers without any influence by the other arms of Government,” he said, adding that the removal of any conflict of interest would inspire more confidence in the decisions of Sessions Court judges and magistrates.

Former Malaysian Bar president Yeo Yang Poh said the Bar had called for the change for decades, adding that from time to time, a Chief Justice of the day would “warm up” to the idea.

In 2006, when Yeo was serving as president, Chief Justice Tun Ahmad Fairuz Sheikh Abdul Halim made a similar call for a separation of the judiciary from the commission.

Yeo added that it was the first time he had heard of a proposal being handed to the commission by the Chief Registrar.

He said having the judicial and legal services combined was not desirable for two reasons: in practical terms, not every one could be fearless; while in theory, even if all legal officers could overcome the pressure, there would still be the perception of impartiality.

“You can’t blame an observer that perceives something is not quite right. A judge could say they would remain impartial even if judging their father; but does it look right?” he asked.

A former officer from the Judicial And Legal Services, who declined to be named, said the risk of transfers were a common reality.

“We used to threaten judges up to the Sessions Court (level), if they misbehave, we will get them transferred as DPPs. A few of them were actually transferred,” he said.

He said though the “threats” were in jest, it shocked him that they were sometimes really carried out, adding that not all moves were sinister, as it was occasionally meant as a lesson for subordinate courts which had made errant judgments.

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Thursday 19 January 2012

Ethics – an asset to justice

Competitiveness and corruption. Presented at t...
Image via Wikipedia

Getting judges to publicly declare their assets is a significant step towards improving the integrity of our judiciary and changing the perception of the bench.

DARE to declare! That seems to be the slogan of the moment, in the wake of the move by Penang Chief Minister Lim Guan Eng and his state executive council to declare their assets publicly last week.

Based on the list of properties, investments and cars along with the loans taken, Penang is being run by a motley crew of wealthy and not-so-rich politicians.

Lim owns two shop lots in Malacca, worth RM435,000 and RM530,000 respectively and has taken RM650,000 in loans to pay for them.

He has RM298,785 in fixed deposits, with more than RM53,000 in earned interests besides investments in Amanah Mutual Bhd and Public Mutual Fund.

But there were no clues about the assets of the spouses and relatives, though. When asked about this, the CM was reported to have replied that the pledge was only for the assets of its leaders to be disclosed.

In the case of Selangor, the declaration of assets by the Mentri Besar and exco members in 2009 was basically in the form of their current earnings in salaries and allowances.

They decided not to include assets owned before the exco members held office, on the grounds of not being able to assure security for them or their family members.

Excos disclosed their assets privately to the MB’s office. The information, however, can be released for legitimate reasons, subject to conditions set and approved by the Special Select Committee on Competence, Accountability and Transparency or Selcat.

For political parties, Parti Sosialis Malaysia (PSM) holds the record for being the first to deliver the promise of declaring the assets of its elected and appointed representatives.

Since 2008, it has made public statutory declarations about what they own.

PSM’s sole MP, Michael Jeyakumar Devaraj – who unseated MIC supremo Datuk S. Samy Vellu in Sungei Siput – has been quoted as saying: “Once you become an assemblyman or MP, you must reveal the assets of yourself, your wife and your immediate family every year.”



An increasing number of countries have adopted similar ethics and even have anti-corruption laws requiring public officials to declare their assets and income, in addition to that of their spouses and dependant children.

In the US, for instance, the main law governing this is the Ethics in Government Act of 1978.

Based on last year’s declaration, President Barack Obama has assets worth at least US$4mil (RM12.48mil).

The amount includes book royalties, retirement funds, US Treasury bills and notes and other holdings.

In Malaysia, would all elected representatives from both sides of the political divide agree to be subject to such scrutiny?

As it is, many of our YBs are seen to be extremely well-heeled. They always claim to champion the cause of the rakyat but live in mansions worth millions and lead luxurious lifestyles.

Of course, they can always declare that they were already rich before being elected or appointed.

So, instead of waiting until they are elected, why not make it mandatory for all nominated candidates for Parliament and state seats to disclose their wealth and means of income and those of their immediate family?

Perhaps one way to ensure this is through compulsion – by an Act of Parliament.

One wonders if there would still be many people clamouring to be elected representatives or appointed representatives under such rules.

But we are at least making progress when it comes to the judiciary.

Chief Justice Tan Sri Arifin Zakaria has made a laudable move towards getting judges to declare their assets.

It is indeed a significant step towards improving transparency and integrity of our judiciary and changing the current public perception of the bench.

“I’m sure all of you have nothing to fear, so we have to work together with the MACC on this matter,” the CJ said at the judges’ conference last week.

The MACC has since set up a task force to identify the process under the civil service for the implementation.

The CJ has also told judges to maintain the independence of the judiciary and not to put up with any interference, including from their spouses, when making their decisions.

According to Transparency International’s Bribe Payers Index of 2008, the judiciary was perceived by surveyed business executives to be one of the most corrupt institutions in the country.

Business executives surveyed by the World Economic Forum Global competitiveness Report 2010-2011 identified the judicial system as being under enough influence of members of government, certain individuals and companies to constitute a competitive disadvantage.

They also found the efficiency of the legal framework for private companies to settle disputes and challenge government actions and/or regulations as another disadvantage.

The CJ’s move to boost the integrity of the judiciary is noteworthy in view of such negative perceptions.

The country cannot afford to have a judiciary perceived to be ethically compromised. It would be a millstone around the neck of any anti-corruption strategy.

As such, it needs the full support and cooperation of the people, members of the Bar, the Attorney-General’s Chambers and more so from the political leaders.

> Associate Editor M. Veera Pandiyan likes to share these wise words of Gandhi: “There is a higher court than courts of justice and that is the court of conscience. It supercedes all other courts.”