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Thread: Reforming the Judiciary

   
   
       
  1. #1
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    Reforming the Judiciary

    The Star
    Wednesday November 26, 2008

    Reforming the judiciary
    Reflecting on the Law
    By SHAD SALEEM FARUQI

    Nothing has done more to cause loss of confidence in the system of
    justice than the way some superior court judges have allowed their
    racial and religious loyalties to override their duty to do justice
    according to the law.

    AT A dinner with the nation’s legal luminaries on April 17, the Prime
    Minister promised a “comprehensive package of reform to strengthen the
    capacity and credibility of the judiciary”.

    Ex-gratia payments were paid soon after that to judges who were
    dismissed or suspended as a result of the Tun Salleh episode.

    Seven months later, the much-awaited Bill on the Judicial Appointments
    Commission is before the Cabinet for scrutiny.

    While this is most welcome, one must remember that many other changes
    are needed to restore the dignity, independence and integrity of this
    most august institution.

    One can think of at least 13 areas where the law and administrative
    practices need fresh perspectives.

    Qualifications for appointment: Under Article 123 only two categories
    of law-trained persons with 10 or more years of experience are
    eligible for elevation to the superior courts.

    These are: Members of the Bar and members of the judicial and legal
    service. Given the problem of quality at the bench, a more diversified
    judiciary should be created.

    There should be a better mix of appointees from the judicial and legal
    service and private practice. It also appears unwise to bar
    distinguished academicians and legal officers in public corporations
    and statutory bodies from being considered for judicial appointments.

    Appointment Commission: The present system of appointment of judges is
    that the Yang di-Pertuan Agong acts on the advice of the Prime
    Minister after consultation with the Conference of Rulers.

    Before giving his advice, the PM is required to seek counsel from the
    Chief Justice and, in case of appointments to their courts, from the
    President of the Court of Appeal, the Chief Judges of the High Courts
    and the Chief Ministers of Sabah and Sarawak.

    The system has not worked well due to factionalism within the
    judiciary. There is a need to inject procedural safeguards around the
    discretion of the Chief Justice (to recommend names to the PM) and of
    the PM to reject eminent nominees and to select names based on his own
    criterion.

    In many democratic countries like the UK and New Zealand, an
    independent judicial nomination or appointment commission is charged
    with the task of vetting names and making recommendations. How far
    this process will lead to more distinguished people being appointed
    will depend on the representative character and integrity of the
    commission members.

    We must remember that systems are as good as the people who administer
    them.

    Under the Federal Constitution, there are at least nine commissions
    and special officers tasked with great constitutional functions. Not
    all of them have lived up to the trust re–posed in them. Judicial
    Commissio–ners: These are temporary judges appointed by the executive
    to tackle the backlog of cases. They do not enjoy the safeguards
    available to other superior court judges.

    It is also notable that direct appointments to the High Court have
    become rare and a stint as a JC is regarded as a probationary period
    for a full appointment afterwards. This practice undermines judicial
    independence.

    Judicial and Legal Service: When we think of judicial independence, we
    tend to think of the superior courts. This obsession with appeal
    courts is improper and has been humorously described as the
    professional disease of appeal-court-titis!

    In fact, 80% of cases are disposed off in subordinate courts. The
    independence and competence of subordinate court judges is crucial to
    the proper administration of justice.

    Regrettably, the existence of a combined judicial and legal service
    seriously breaches the doctrine of separation of powers because
    members of this service perform dual functions.

    They are legal officers of the crown dependent on government patronage
    for promotion, transfer etc. They may also be sent to the courts as
    judges of the Sessions and Magistrates Courts.

    Promotions: In the matter of promotion from the High Court to the
    Court of Appeal and to the Federal Court, there are no clear cut
    guiding principles.

    Seniority and legal acumen do not count. The discretion of the CJ to
    make a recommendation appears paramount.

    A performance evaluation programme should be implemented that
    objectively records the work of a judge and that permits government
    and private lawyers to evaluate justices on some transparent criteria.

    Remuneration: The terms of service that are offered to judges must be
    adequate to enable them to live with dignity and to resist the
    temptation to curry favour with the executive or the private sector.

    Rules relating to dismissal: The Tun Salleh episode shocked us into
    realisation that rules relating to suspension and dismissal of judges,
    while better than in many other countries, were full of loopholes and
    lacunas. We need to revisit Article 125 of the Constitution.

    Article 121(1): Prior to the controversial amendment in 1988, Article
    121(1) vested the “judicial power” of the federation in the courts.

    This was understood to mean that the superior courts had an “inherent
    power” to be the final arbiter on questions of law, to enforce rights
    and duties and to stand between the citizen and the state.

    Regrettably, the law now says that the High Courts “shall have such
    jurisdiction and powers as may be conferred by or under federal law”.

    The exact implication of this change is open to debate but many
    believe that the amendment implies that there are no inherent powers
    any more. Courts should only do what is required of them by federal
    law.

    If this is so, then the citizen is left helpless if, on an issue,
    there is no law on point; or if the government-controlled Parliament
    gives to the executive, as it often does, “absolute discretion”; or if
    there is an “ouster clause” excluding judicial review. We need to
    restore the previous Article 121(1).

    Article 121(1A): The original intention of this constitutional
    amendment was to upgrade the status of syariah courts and to make them
    autonomous of the civil courts in matters of Islamic law. These aims
    were laudable.

    What has happened, however, is that jurisdictional conflicts between
    civil and syariah courts have begun to plague the legal system and the
    civil courts have begun to play second fiddle.

    Even if constitutional issues are at stake; even if one party is a
    non-Muslim; even if the remedy sought is not available in the
    religious courts, the civil courts are abdicating their constitutional
    function. In turn, syariah courts are reading their powers
    expansively.

    Nothing has done more to fray inter-religious relationships and to
    cause loss of confidence in the system of justice than the way some of
    our superior court judges have allowed their racial and religious
    loyalties to override their duty to do justice according to the law.

    It is time that the Government and parliament exhibited political
    courage to provide solutions to jurisdictional disputes.

    Power to punish for contempt: Courts should have the power to punish
    for contempt any one, no matter how high and mighty, who subverts the
    administration of justice.

    However, this power should not be taken so far as to prevent a lawyer
    from respectfully asking a judge to disqualify himself on the ground
    of bias or to punish a lawyer for questioning the conduct of the AG or
    his officers or to prevent the Bar Council from exposing judicial
    misbehaviour.

    Truth and public interest should be a defence to a charge of contempt.

    The law should be expanded to hold accountable senior judges who try
    to dictate verdicts to their subordinates. We have disturbing evidence
    of this misbehaviour.

    Judicial corruption: An impeccable record of integrity is absolutely
    necessary. The law should come down heavily against judges who have
    cosy relationships with lawyers and corporate figures appearing before
    them as litigants.

    Judicial immunity: In the performance of their judicial functions
    judges are entitled to full immunity. But this principle must not
    protect judges who act in bad faith or in callous disregard of their
    jurisdictional limitations.

    Further education: Life is always larger than the law. The law can,
    therefore, never stand still. Legal education is a journey, not a
    destination.

    The Bench, the Bar, the law faculties and the professions must team up
    to conduct periodic, formal courses in specialised fields to extend
    the shores of knowledge.

    All in all, judicial reform requires a multi-dimensional approach.
    Amendments to the law will un–doubtedly help.

    But whether the appointees have the character, the courage and the
    intellectual capacity to soar above the timberline of the ordinary and
    to transcend the pride, prejudice and temptation that afflict ordinary
    mortals cannot be guaranteed.

    Dr Shad Saleem Faruqi is Professor of Law at UiTM.

    http://thestar.com.my
    py

  2. #2
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    Re: Reforming the Judiciary - Judges Hall of Shame

    Malaysian Judges: Hall of Shame
    FROM AROUND THE BLOGS

    Friday, 13 November 2009 Super Admin

    DISGRACE#01 Mohd Eusoff Chin, Chief Justice of Malaysia from 1994 – 2000, subjected himself to the worst kind of corruption, by ‘tagging’ along lawyer V.K. Lingam on a family vacation in New Zealand in 1994. He subsequently lied to the Royal Commission of Inquiry on the Lingam tape scandal.

    DISGRACE#02 S. Augustine Paul, currently Federal Court judge, Malaysiatoday....
    py

  3. #3
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    Re: Reforming the Judiciary - 'Clean up the judiciary first'

    'Clean up the judiciary first'

    Tue, 17 Aug 2010 06:00

    By Teoh El Sen

    KUALA LUMPUR: The Malaysian judiciary needs to improve to restore the people's confidence in the courts, said lawyer-activist Edmund Bon.

    Bon said that until today, the perception that the judiciary is "executive-compliant" still remains.

    "When people have no faith in the courts, then confidence in seeking a fair remedy will be at an all-time low," said the Bar Council member and chairman of the constitutional law committee.

    Bon admitted there are some "very, very good judges" but said he felt depressed that some do not get recognised or promoted because of their independence.

    Asked what should be done, Bon said the judiciary first needed an internal clean-up following the findings and recommendations of the Royal Commission of Inquiry into the VK Lingam judge fixing fiasco.

    "Until now, there are recommendations in the report that the Attorney-General and the government have not implemented. There are also several sitting judges named... and allegations of corrupt practices which have not been dealt with," he said.

    Bon said the judiciary ought to look at itself, too, despite the Judicial Appointments Committee being set up to rid itself of the poor perception in the appointments mechanism.

    Unrealistic goals

    On the Key Performance Indicator (KPI) system, Bon said he believed that "unrealistic" goals have forced the standard of justice to drop.

    "For all these years the courts have been lackadaisical in dealing with cases, then you change the system to be overly efficient overnight. It is extremely difficult for litigants and lawyers to cope. Many cases are struck out without the litigants getting a fair chance to have themselves heard," he said.

    The KPI system was introduced by Chief Justice Zaki Azmi for judges two years ago to clear the backlog of cases and create an efficient judicial system.

    "This move by the Chief Justice is a breath of fresh air and is necessary. He has been proactive and responsive when there are problems, immediately sorting the complaints on a phone call. On the whole, the system works as the cases go on as scheduled and lawyers are able to collect fees on time and close files,” said Bon.

    “We may have the best KPI and clear as many cases as we want, yet if the people do not feel that the judiciary is independent, we would have failed,” he added.

    “No one will remember a legacy of clearing cases fast, but people will remember a politically-charged case when a court makes an unjust decision."

    Serious amendments

    But Bon said the most recent amendments to increase the jurisdiction of the subordinate courts is worrying.

    He said such serious amendments should have been done in consultation with the Bar Council.

    "Consultation is not a one-way street. We are told about it at the last hour and in the next moment, it’s passed in Parliament. Then we have a deputy minister expressing surprise that the Bar Council had objected so late in the day! You can’t blame anyone for thinking that we are irrelevant.”

    "We are concerned because it means that lower courts may issue injunctions and deal with high-value claims when the level of competency is still left much to be desired. Extraordinary powers should be given after a proper study," said Bon

    He said the simple answer to this was to appoint more High Court judges.

    He added that the Bar Council had already sent a memorandum and asked for a deferment of the amendments.

    "The other problem is when we give more powers to the lower courts (deciding on) cases against the government. If we want to do that, we should separate the judicial from the legal service," said Bon, explaining that lower court judges are appointed by the Judicial and Legal Services Commission, of which the Attorney-General is a member, while High Court judges are appointed by the King.

    Ghosts of the past

    Bon also said Zaki cannot simply say that he is "looking forward" and "whatever happened in the past is irrelevant".

    "Yes, we have to do things to move us forward, but the ghosts of the past will always haunt us when we try to sweep matters under the carpet."

    Bon said the appointment of Zaki, who once had close ties with Umno, is not very different from the 1988 judicial crisis.

    "Then the executive removed the head of the judiciary and it was quite obvious what was happening. Appointing someone close to the ruling party to control the judiciary is less obvious."

    "I think the CJ has turned the administration around, but the perception of 'business as usual' in terms of independence has not been dispelled." FreeMalaysiaToday....
    py

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