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Friday, April 27, 2007

Press Release: EMPLOYER HOLDS PASSPORT PUTTING WORKER AT RISK

PRESS RELEASE - 27/4/2007


EMPLOYER HOLDS PASSPORT PUTTING WORKER AT RISK


PROPERLY DOCUMENTED MIGRANT WORKER ARRESTED AND DETAINED FOR MORE THAN 70 DAYS


ARRESTED BECAUSE HE COULD NOT PRODUCE PASSPORT WHICH WAS WITH THE IMMIGRATION DEPARTMENT


WHEN ORIGINAL PASSPORT RETURNED BY IMMIGRATION DEPARTMENT AND SHOWED TO POLICE, SEMENYIH DETENTION CENTRE, IMMIGRATION DEPARTMENT, PUBLIC PROSECUTOR’S OFFICE - HE WAS NOT RELEASED UNTIL 13/4/2007


EMPLOYER NOW WRONGFULLY HOLDING PASSPORT - MUHAMMAD ISHFAQ IN DANGER OF GETTING ARRESTED AND DETAINED - HE IS DEPRIVED OF HIS “PERSONAL LIBERTY” - HE IS IN “DETENTION” OF ANOTHER KIND.


MUHAMMAD ISHFAQ (Paspot No: AY 1841031), a Pakistani national, came to Malaysia legally to work. His employer is Indrasit Holdings Sdn Bhd and from the documentation, it is clear that his entry into Malaysia was legal. It was done after the Immigration Department had granted permission vide their letter dated 24/11/2006 addressed to the employer to bring in 32 workers from Pakistan.


The employer, after the arrival of Muhammad Ishfaq in Malaysia, then took his passport and submitted it to the Immigration Department for the required work permit [Pas Lawatan (Kerja Sementara)] to be indorsed,etc.


It was when the said original Passport of Muhammad Ishfaq was with the Immigration Department that Muhammad Ishfaq was arrested by the police on 28/1/2007 maybe for not being able to produce and show his original passport.


We say “maybe” as there can still be no certainty as the police report relating to the arrest, despite being requested for by the lawyers, have yet to be provided to the Muhammad Ishfaq’s lawyers.

Muhammad Ishfaq, after his arrest was sent to Depoh Tahanan Pendatang Tanpa Izin Semenyih Selangor where he was detained until finally he was released on 13/4/2007 after this application in court was filed and served.


The application was filed on 2/4/2007 with a Certificate of Urgency and the court could only give 27/4/2007 as the Hearing Date.


After the application was filed, the Peguam Negara’s office ordered his release on or before 5/4/2007 - but Depoh Tahanan Pendatang Tanpa Izin Semenyih Selangor did not want to release him - and ultimately only released him on 13/4/2007.


The Immigration Department took his original passport, and gave it to the employer despite the fact that Muhammad Ishfaq asked that it be given to him.


Muhammad Ishfaq asked his employer for his passport but they refused to give him back his passport - and they also threatened that they are going to cancel Muhammad Ishfaq’s

permit and send him back to Pakistan. Muhammad Ishfaq wants to stay and work in Malaysia - he does not want to go back to Pakistan, and his work permit is valid until January 2008.


Muhammad Ishfaq may be no more in detention in Depoh Tahanan Pendatang Tanpa Izin Semenyih Selangor but still his a person in “detention”, and a person whose “personal liberty” is being deprived BECAUSE his employer has kidnapped his passport and is refusing to return it to him.


Since his release,Muhammad Ishfaq has been on leave taking rest to recover from the trauma of prolonged detention. Muhammad Ishfaq is also getting medical treatment for the skin disease that he got by reason for his detention.


Muhammad Ishfaq comes to court to get his freedom and his personal liberty back - and hopes that the court will also order that his passport be returned to him for him to keep so that he will be safe to move around without worry of being arrested and detained just because he could not produce his original passport.


A brief chronology of what happened to Muhammad Ishfaq is as follows:-


28-1-2007 Muhammad Ishfaq arrested by police


29-1-2007 Employer’s representative goes to the Sunway Police station with all documents to prove that the presence of Muhammad Ishfaq was legal. They asked them to go to the Bandar Puchong police station. The Bandar Puchong Police said that they could not o anything as this was a Bandar Sunway matter.


30-1-2007 The employer’s representative went back to the Bandar Sunway police station - who now told them that they could not do anything until they had sight of the original passport of Muhammad Ishfaq.


9-2-2007 The employer receives back the original passport from the Immigration Department, which clearly has a Pas Lawatan(Kerja Sementara) that expires only on 11/1/2008 - that makes it clear beyond any doubt that Muhammad Ishfaq is and was legally here in Malaysia for work until January 2008. The police then asks the employer’s representative to go to Depoh Tahanan Pendatang Tanpa Izin Semenyih Selangor.


13-2-2007 The employer’s representative goes to the Depoh Tahanan Pendatang Tanpa Izin Semenyih Selangor, and they say they cannot release Muhammad Ishfaq until they receive directions from the police or the Public Prosecutor. The Depoh Tahanan Pendatang Tanpa Izin Semenyih Selangor then takes and holds the original passport of Muhammad Ishfaq.


15-2-2007 The employer’s representative goes back to the Sunway Police Station, and one Sjn. Ariffin says that he needs the original passport.


21-2-2007 The employer’s representative goes back to Depoh Tahanan Pendatang Tanpa Izin Semenyih Selangor and obtains the original passport of Muhammad Ishfaq.

The employer’s representative returns to Sjn Ariffin (Sunway Police Station), and he now says that the Immigration Department does not have any records about Muhammad Ishfaq.


22-2-2007 The employer’s representative goes to the Immigration Department in Pusat Bandar Damansara, Kuala Lumpur and gets even additional documents verifying Muhammad Ishfaq’s existence and valid presence in Malaysia. They also went to the Selangor Immigration Department.


When the employer’s representative returns with all these proof, Sjn Ariffin wrongfully said that he did want to be disturbed about this matter.


When the Public Prosecutor’s office in Selangor is contacted, they say that they have no records of the arrest and detention of Muhammad Ishfaq.


26-2-2007 The employer’s representative then went back to the Immigration Department in Pusat Bandar Damansara, and they also said that they do not have any record of Muhammad Ishfaq’s arrest and detention.


The employer’s representative goes back to the Sunway Police Station,and meet with the Officer in Charge, one C/Insp Supari, who says that he cannot do anything as this case was handled by Sjn Ariffin.


15-3-2007 Muhammad Ishfaq’s friend, one Alam Zeb, sends a letter to the Public Prosecutor’s office in Selangor enclosing a Statutory Declaration that also enclosed copies of all relevant documents appealing for the release of Muhammad Ishfaq.


28-3-2007 Muhammad Ishfaq’s lawyer sends letters to all relevant parties seeking the release of Muhammad Ishfaq, enclosing also relevant documents clearly showing that the arrest and prolonged detention was wrong.


3-4-2007 Public Prosecutor’s office in Selangor sends Alam Zeb a letter stating that his appeal that Muhammad Ishfaq be released have been allowed.


5-4-2007 Peguam Negara Malaysia sends a letter to the Muhammad Ishfaq’s lawyers stating very clearly that they have investigated the matter, and have ordered that Muhammad Ishfaq is to be released from custody. (This letter was also copied to the Public Prosecutor’s office in Selangor)


11-4-2007 After receipt of the letter from Peguam Negara Malaysia on 11/4/2007, Muhammad Ishfaq’s lawyers sent letters to all relevant parties enclosing the Peguam Negara’s letter, asking that Muhammad Ishfaq be immediately released from custody/detention.There was also verbal communication with the relevant parties. Many other letters were sent.


13-4-2007 The Immigration Department in Putrajaya finally contacts the lawyers of the Applicant stating that Muhammad Ishfaq will be released in Putrajaya, and that the lawyers need to be present with the original passport. It was clearly made known that the lawyers were Muhammad Ishfaq’s lawyers - not the lawyers of the employer. It is only after the employer stopped trying to get Muhammad Ishfaq out of detention that Muhammad Ishfaq appointed his own lawyer.


The original passport of Muhammad Ishfaq was taken from the lawyers of Muhammad Ishfaq, and the Immigration Department said that they had to wait for the employer to come before Muhammad Ishfaq can be released.


When the employer’s representative arrived, the original passport was handed to the employer’s representative by the Immigration Department despite protests from the lawyers of Muhammad Ishfaq and Muhammad Ishfaq himself.


The employer’s representative stated that the employer wanted to cancel the work permit and deport Muhammad Ishfaq back to Pakistan.


Muhammad Ishfaq and his lawyers asked the employer’s representative to return the Applicant’s passport to Muhammad Ishfaq but they refused, and till today is wrongly holding on to Muhammad Ishfaq’s passport, and Muhammad Ishfaq is again at risk and his freedom of movement and “liberty” is denied. He is still in “detention” and/or “custody” of another kind.


Muhammad Ishfaq is on leave at the moment to recover from the trauma of detention and also is seeking medical treatment. The employer has also not paid him his wages since he arrived in Malaysia. Muhammad Ishfaq has filed a complaint with the Labour Department. Muhammad Ishfaq will be going back to work once the employer is able to tell him where he is to work.


Muhammad Ishfaq


(For further information, kindly contact Mr Charles Hector of Messrs Charles Hector, Muhammad Ishfaq’s lawyer [03-79581844, 019-2371100] )

Monday, April 23, 2007

108 police custody deaths in six years (Malaysiakini)






108 police custody deaths in six years
Soon Li Tsin
Apr 23, 07 2:48pm
:

Prime Minister Abdullah Ahmad Badawi today revealed that 108 deaths occurred during police custody between 2000 and 2006.

In a parliamentary written reply to Wong Nai Chee (BN-Kota Melaka), Abdullah, who is also internal security minister, stated that the number of deaths was highest in 2003 with 23 cases.

There was no significance decrease in numbers but a sharp increase was noted in 2000 (seven deaths) to 2001 (16 deaths).

The premier also disclosed the causes of deaths. This include heart attacks, suicide by hanging, fights between detainees, slipping in the lock-up toilet and asthma.

All deaths investigated

However, Wong who asked for the number of inquiries held over deaths in custody did not get a response.

According to the written reply, all deaths in custody are investigated.

"Sudden death reports are opened to facilitate such investigations. Each case will be referred to the hospital for post-mortem to determine the cause of death," Abdullah said.

"After the investigations are concluded, the report will be forwarded to the public prosecutor or his deputy to decide whether there was any criminal element involved," it read.

He added that investigation reports will then be sent to the magistrates for an inquest to find out the cause of death

Wednesday, April 18, 2007

BOOKS: Mahathir vs. Abdullah

Mahathir vs. Abdullah RM26.00
Mahathir vs. Abdullah
Click to enlarge
Author: various
Publisher: Kinibooks
Year: 2007
Number of page: 212
Delivery: 1 day

The book is a compilation of articles that try to cut through the sandiwara (playacting) of the vicious war of words, and see what really drove TDM to launch such a merciless attack on his handpicked successor, as well as analyze the factors influencing each turn this scandal-ridden battle took. It also includes letters from Malaysiakini readers - representing a truly wide spectrum of opinion, critical thought, and passionate support for both parties. The book features a number of high-profile contributors, including Anwar Ibrahim, Lim Guan Eng, P. Gunasegaram, Tian Chua, Collin Abraham, M Bakri Musa, Steven Gan, P Ramasamy, James Wong, Kim Quek, Charles Hector, Khoo Kay Peng, and many more.

Mahathir vs. Abdullah

Sunday, April 08, 2007

About the world's biggest court complex and The Judiciary under Ahmad Fairuz

About the world's biggest court complex and

The Judiciary under Ahmad Fairuz

Malaysia under the premiership of Abdullah Ahmad Badawi is, unfortunately, still pre-occupied with having the tallest and biggest structures and buildings in the world in Malaysia. Soon, we will have what is proclaimed to be the biggest court complex in the world.

This world's biggest court complex in Jalan Duta, Kuala Lumpur, will house 30 High Courts, 21 Sessions Courts and 26 Magistrate's Courts and will be operational in May 2007.

Amusingly, the 77-court complex will only have 500 parking bays for the public and lawyers. It is situated in a place not accessible by Light Rail Transport (LRT) or good public transport facilities. It is a catastrophe waiting to happen.

A parking nightmare – 6.5 parking bays per court

If one were to drop in today at any of the High Courts or Sessions Courts or Magistrate Courts and look at the number of cases listed for the day, one will be able to see that the 6.5 parking bays per court for lawyers and the public in the new "world largest" court complex is absurd.

On April 2, in just two of the Appellate and Special Powers High Courts in Kuala Lumpur, where both judges were on leave and had no matters listed before them for the day, there were still 36 matters fixed before the Senior Assistant Registrars and the Deputy Registrars. Conservatively, taking two lawyers per matter listed (which is not realistic for more often than not it is more than two lawyers that turn up in court), this means 72 lawyers, and if they all drove cars, the 13 parking bays allocated for two courts in new court complex will surely not be sufficient.

Taking another example, in the High Court (Commercial 1), there were 18 matters listed for the same day, and again that makes it about 36 lawyers. The numbers are even higher in the Sessions Courts and the Magistrate's Courts where even the list of fresh summons cases could be about 30 to 50 and this is when the lay defendants must be present to prevent judgment in default recorded against them.

There are insufficient parking bays, and with no LRT system in Jalan Duta, there will be utter chaos. Where will lawyers and the public park their vehicles?

Now, the courts in Kuala Lumpur are currently situated in Wisma Denmark and opposite Dataran Merdeka, Nearby, and there are LRT stations and many buses and taxis available. With the move to Jalan Duta, lawyers, their clients and the public will be in a situation akin to a hell on earth. Cases may be struck off and judgement entered while desperate lawyers and the public struggle to get their cars parked just to get to court in time.

Even court staff, who now use affordable public transport like the LRT and buses to get to the courts, will face higher cost of travel while their wages or allowances remain the same.

No real reason to move

With regard to the High Courts situated now in Wisma Denmark, where the government has to pay rental to the private owners of the building, a move to “our own” building would be a good idea – but for the courts being housed in the Federal Court Building, the JKR Building, the Jalan Raja government-owned buildings and the rather new Sessions and Criminal High

Court building, there really is no necessity for any move to ONE big court complex in Jalan Duta.

These buildings in front of the Dataran Merdeka have housed courts for almost 100 years, and there is no necessity to move them out to some new court complex unless the motive is just to get into the Guinness Book of Records.

The Shah Alam Court complex should have served as a very valuable lesson to our government, for here everyday lawyers and the public have to break the law and park their cars beside the road and walk sometimes about half a kilometer lugging their big bags of documents along the road and up the steep stairs just to get to court. When it rains, it is worse.

Our government did not learn from past mistakes and continues making the same mistakes over and over again causing greater loss of public funds and increased suffering for the masses.

Some serious studies of the number of people that come to court - and their mode of transport - would have not led the government into making this bad move of building a huge court complex with 77 courts at a place where there is clearly insufficient parking bays and definitely inadequate affordable public transport.

If anyone should have protested this “world's largest” court complex, it should have been our Chief Justice Ahmad Fairuz Sheikh Abdul Halim but he stayed silent and continued to point fingers of blame at the wrong targets for the failings of the Malaysian courts, especially on the issue of backlogs and delays.

He really should have set up a team to analyse matters thoroughly before he comes out and speaks to the press. He must not forget that he is the current face of the Malaysian judiciary and as such, he should protect and enhance the good name and reputation of the Malaysian judiciary and not do the opposite.

Too few judges and courts – 2.4 judges to a million people

Then, there is also the issue of a lack of judges and courts in the country. Federal Court chief registrar Datuk Tengku Maimun Tuan Mat (as reported in New Straits Times, 20/9/2006), disclosed that the number of judges in the country was low compared with other Commonwealth nations. He was quoted as saying that the Malaysian ratio is "2.4 judges to a million people - a far cry from the ratio in India (10.5), Australia (57.1), Britain (50.1) and Canada (75)."

This really is the problem for the backlog and the delays in our courts, and the only solution is to increase the number of judges and courts in the country. Our population has increased, and grown in consciousness about legal rights and human rights. The number of lawyers has also increased to more than 12,000 in Peninsular Malaysia, and so too has the number of new law graduates coming out every year. Alas, the number of courts and judges have not increased at the same rate, and that is where the real problem lies.

What we need is to have more courts and more judges. Maybe we should only move the courts from Wisma Denmark to the new court complex, as we appoint new judges and court staff for the remaining court rooms so that our ratio at least hits 10 judges to a million.

Pressure on judges to clear backlogs likely to cause undesirable results

The pressure exerted by the Chief Justice on judges and magistrates to clear the backlog of cases is certainly also not the solution and may lead to great injustices.

When the heads of the judiciary are only concerned with statistics, some judges pressured will just start disposing cases summarily and with haste just to meet the quotas, the right to a fair and proper hearing and trials will suffer and more dissatisfied litigants and users of the justice system would just end up appealing to higher courts if they can afford it. Or they will just walk away disgusted with the courts and judges and the feeling that they have been deprived of the right to a fair trial.

The Chief Justice recently placed the blame on lawyers who had “up to three cases a day” who could not turn up for their cases. But it is a fact that the problem lies with the court, not lawyers, as it is the court that usually fixes hearings without first obtaining the free dates of the lawyers involved.

Case Management Sessions for Trials Years away is Impractical

Several years ago, a “case management” system was introduced by the courts, and it is absurd to see today lawyers wasting so much time attending these case management sessions before a judge.

This system is not workable if the judges are doing case management for cases which, based on the judges diary, can only be fixed for trials several years down the road. If you are doing case managements for cases where trial will begin in 2 to 3 months, then it may be acceptable

By the time the trial date comes, the judge in that court that did the “case managements” may be no more there, and the new judge would have his own style and may require things done very differently before a trial starts.

In a few months or a year, a judge may have been transferred or elevated, and another judge comes in with a different style and a whole set of different directions for case management, and the whole time consuming case management process begins all over again.

This case management system must be abolished as it not only wastes a lot of time and resources, but has been shown to be rather inefficient. If there were not so many case management matters, maybe our judges could be spending their precious time hearing substantial applications or even conducting full trials.

Now, it seems that whole mornings get wasted by the numerous “case management” sessions that result in judges only being able to proceed with their trials in the afternoon.

Declining standards of judges and judicial officers

The other impediment is the declining standards in judges, session court judges, magistrates and registrars, and the right and pleasure of having had a good hearing is slowly fading away in the Malaysian courts.

For even a minor application, decisions are not handed down on the same day of the hearing but are adjourned to some later date. What is disturbing sometimes for lawyers is the fact that many a judge or registrar do not really take down full notes when submissions are made by lawyers, and as such when it comes to giving a decision several weeks down the road, one wonders what he looked at when he made that decision.

When asked for reasons for a decision, one registrar was even quick to say that she does not have to give reasons, and that she had discussed the matter with her judge. Not giving reasons is not right but discussing with the judge is a bigger wrong as the right of appeal from a registrar’s decision is before the judge, who hears the application afresh and should never had been involved in any discussions with the registrar before a decision is made.

If registrars have to discuss with their judges before handing down a decision, then maybe that appeal to the judge should just be removed. Not giving reasons for a decision also makes one wonder whether the deliverer of the order really knows why she allowed an application or dismissed it.

Inexperienced and rather “young” registrars

Talking about senior assistant registrars and deputy registrars of the High Court hearing applications in million-dollar suits and making an order that the suit be dismissed or that judgment be given makes a mockery of the financial jurisdiction of the courts.

Now if the amount of dispute or value of the subject matter does not exceed RM25,000, our law says that the magistrate’s court has jurisdiction, and if it exceeds RM25,000 and is less than RM250,000, then it a matter for the sessions judge. If it exceeds RM250,000 then it is matter for the High Court judge.

Fresh law graduates and those with less than even 2 years in the Judicial and Legal Services are sitting as senior assistant registrars and deputy registrars and making judgments or dismissing suits in the High Court, and this is just not right for, I believe, that they must, at the very least, have five years experience in the Judicial and Legal Services before they are appointed as senior assistant registrars and at least seven years before they become deputy registrars.

Even then, these registrars should not be hearing applications in the High Court that may end in judgment for one party or a dismissal of the suit.

If registrars spend more time assisting their judges in preparing briefs and doing research, maybe High Court judges could hear more matters and dispose cases more efficiently and justly.

The “probation judge” system

During the reign of Dr Mahathir Mohamad, the “probation” judge system was introduced, whereby a person was first appointed as a judicial commissioner and only after about two years he/she may be elevated to a judge.

This is a mockery that forgets that security of tenure is one of the elements required to ensure independence of a judge. It is wrong for persons to be even be appointed as judicial commissioners – they should just be made judges of the High Court.

Abdullah Ahmad Badawi has been premier for some years now, and he should be removing those things his predecessors introduced to limit the power of the judiciary and to “control” judges – but alas he has not done so.

It is not right for one to be today a magistrate, then a federal counsel or deputy public procedure and then a sessions court judge, as it does not portray a picture of an independent magistrate or a sessions court judge especially if the dispute involves a party and some body/person linked or associated with the government or the state.

In the criminal justice system, will a magistrate be able to be independent when the deputy public prosecutor, a senior to a magistrate in the Judicial and Legal Services, appears for the prosecution? I think not.

The call for the separation of the judicial services from the legal services was made by the Malaysian Bar vide a resolution passed in 2000, has still not been acted upon by the government or the judiciary.

Post-retirement conduct of judges

In 2003, Tun Mohamed Dzaiddin, the former Chief Justice, being the head of the Malaysian Judiciary, retired from office, and soon after joined a law firm as a consultant.

Bar Council then said that “...when a judge retires and soon after joins a law firm, an area of serious concern that immediately presents itself is the perception that an offer to do so might have been made to the judge before his retirement, and discussions or negotiations on the same might have started or taken place while the judge was still serving on the bench; particularly if there is a short time lapse between the judge’s retirement and his joining the firm."

“This in turn gives rise to the question whether the independence of the judge could have in any way been influenced or compromised by the making of such an offer or the holding of such a discussion...”

In the said statement, the Bar Council went on to state that “in protection of that principle [Independence of the Judiciary], and after examining the experience of other jurisdictions, the Bar Council is of the view that there ought to be a lapse of a suitable period of time (which is often called a “cooling off” period) after a judge’s retirement before he may be permitted to practise law at the Bar..”.

The then Minister in the Prime Minister’s Department Dr Rais Yatim (the de facto law minister) said that the government would be including post retirement conduct into the Code of Conduct of Judges.

In January 2005, the government change their mind and said that they would not do so.

Maybe not a Code of Conduct but Guidelines set by the Judiciary

Maybe the present Chief Justice Ahmad Fairuz Sheikh Abdul Halim can come up with some guidelines about this matter, something that would state clearly that a retiring judge should not join a law firm or a private company as a director/consultant/chairman (more so if the said judge presided in a matter involving the said company or related companies whilst he was on the bench).

The judiciary, on its own, can set up standards and guidelines for judges, and maybe our current CJ can do something about this. After all, he is concerned about judicial corruption.

Will Ahmad Fairuz deliver?

The same question was asked of previous CJs, and now we all have to wait and see whether our present Chief Justice Ahmad Fairuz can bring back the Malaysian judiciary to the stature we had during the pre-1988 period.

The elevation of High Court judges to the Court of Appeal, leaving many High Courts with no judges for some time was a sad display of our current CJ’s efficiency.

He should have made sure that new judges of the High Court was appointed at the same time, and this delay in the appointment of judges surely also contributed to the backlog and delays in court.

The sudden transferring of the Altantuya Shaariibuu murder trial from Justice KN Segara to Judicial Commissioner Mohd Zaki Md Yassin also raised some concerns.

Was the creation of new courts in Shah Alam resulting in the two Shah Alam sessions courts to be relocated outside the state of Selangor to Wisma Denmark in Kuala Lumpur linked in any way to that Altantuya Shaariibuu murder trial?

If there was going to be a lack of space in the Shah Alam court complex, should not some building in Shah Alam have been rented and renovated for the two sessions court? Was it poor planning or was it too rushed a decision to increase the number of criminal High Courts in Shah Alam?

Can judges or judicial commissioners be appointed without consulting Chief Judge of the High Court of Malaya?

The slowness in the appointment of the new Chief Judge of the High Court of Malaya is also making people wonder about the reasons for this delay.

It was after the former Chief Judge of the High Court of Malaya, Siti Norma Yaakob, had retired on Jan 5 this year that there was a sudden appointment of new judicial commissioners, when for an appointment of a judge or a judicial commissioner, the Prime Minister before advising the King should consult with the Chief Judge of the High Court of Malaya. This is what our Federal Constitution says.

One wonders whether this consultation took place with Siti Norma before she retired.

There is still time for us to keep an eye on the actions and omissions of Ahmad Fairuz before we have to make any conclusions.

To date, he has been found wanting in many aspects. And if the fears concerning the “world’s largest” court complex turns out to be true, it will not reflect well on this head of the Malaysian judiciary.

Friday, April 06, 2007

Will the Chief Justice deliver? (Pt II)





Will the Chief Justice deliver? (Pt II)
Charles Hector
Apr 6, 07 1:08pm



(Yesterday: Now, it seems that the whole mornings are wasted by the numerous “case management” sessions whereby judges can only proceed with their trials in the afternoon.)

The other impediment is the declining standards in judges, session court judges, magistrates and registrars, and the right and pleasure of having had a good hearing is slowly fading away in the Malaysian courts.

For even a minor application, decisions are not handed down on the same day of the hearing but are adjourned to some later date. What is disturbing sometimes for lawyers is the fact that many a judge or registrar do not really take down full notes when submissions are made by lawyers, and as such when it comes to giving a decision several weeks down the road, one wonders what he looked at when he made that decision.

When asked for reasons for a decision, one registrar was even quick to say that she does not have to give reasons, and that she had discussed the matter with her judge. Not giving reasons is not right but discussing with the judge is a bigger wrong as the right of appeal from a registrar’s decision is before the judge, who hears the application afresh and should never had been involved in any discussions with the registrar before a decision is made.

If registrars have to discuss with their judges before handing down a decision, then maybe that appeal to the judge should just be removed. Not giving reasons for a decision also makes one wonder whether the deliverer of the order really knows why she allowed an application or dismissed it.

Inexperienced registrars

Talking about senior assistant registrars and deputy registrars of the High Court hearing applications in million-dollar suits and making an order that the suit be dismissed or that judgment be given makes a mockery of the financial jurisdiction of the courts.

Now if the amount of dispute or value of the subject matter does not exceed RM25,000, our law says that the magistrate’s court has jurisdiction, and if it exceeds RM25,000 and is less than RM250,000, then it a matter for the sessions judge. If it exceeds RM250,000 then it is matter for the High Court judge.

Fresh law graduates and those with less than even 2 years in the Judicial and Legal Services are sitting as senior assistant registrars and deputy registrars and making judgments or dismissing suits in the High Court, and this is just not right for, I believe, that they must, at the very least, have five years experience in the Judicial and Legal Services before they are appointed as senior assistant registrars and at least seven years before they become deputy registrars.

Even then, these registrars should not be hearing applications in the High Court that may end in judgment for one party or a dismissal of the suit.

If registrars spend more time assisting their judges in preparing briefs and doing research, maybe High Court judges could hear more matters and dispose cases more efficiently and justly.

The probation system

During the reign of Dr Mahathir Mohamad, the “probation” judge system was introduced, whereby a person was first appointed as a judicial commissioner and only after about two years he/she may be elevated to a judge.

This is a mockery that forgets that security of tenure is one of the elements required to ensure independence of a judge. It is wrong for persons to be even be appointed as judicial commissioners – they should just be made judges of the High Court.

Abdullah Ahmad Badawi has been premier for some years now, and he should be removing those things his predecessors introduced to limit the power of the judiciary and to “control” judges – but alas he has not done so.

It is not right for one to be today a magistrate, then a federal counsel or deputy public procedure and then a sessions court judge, as it does not portray a picture of an independent magistrate or a sessions court judge especially if the dispute involves a party and some body/person linked or associated with the government or the state.

In the criminal justice system, will a magistrate be able to be independent when the deputy public prosecutor, a senior to a magistrate in the Judicial and Legal Services, appears for the prosecution? I think not.

The call for the separation of the judicial services from the legal services was made by the Malaysian Bar vide a resolution passed in 2000, has still not been acted upon by the government or the judiciary.

Post-retirement conduct of judges

In 2003, Tun Mohamed Dzaiddin, the former Chief Justice, being the head of the Malaysian Judiciary, retired from office, and soon after joined a law firm as a consultant.

Bar Council then said that “...when a judge retires and soon after joins a law firm, an area of serious concern that immediately presents itself is the perception that an offer to do so might have been made to the judge before his retirement, and discussions or negotiations on the same might have started or taken place while the judge was still serving on the bench; particularly if there is a short time lapse between the judge’s retirement and his joining the firm."

“This in turn gives rise to the question whether the independence of the judge could have in any way been influenced or compromised by the making of such an offer or the holding of such a discussion...”

In the said statement, the Bar Council went on to state that “in protection of that principle [Independence of the Judiciary], and after examining the experience of other jurisdictions, the Bar Council is of the view that there ought to be a lapse of a suitable period of time (which is often called a “cooling off” period) after a judge’s retirement before he may be permitted to practise law at the Bar..”.

The then Minister in the Prime Minister’s Department Dr Rais Yatim (the de facto law minister) said that the government would be including post retirement conduct into the Code of Conduct of Judges.

In January 2005, the government change their mind and said that they would not do so.

Maybe the present Chief Justice Ahmad Fairuz Sheikh Abdul Halim can come up with some guidelines about this matter, something that would state clearly that a retiring judge should not join a law firm or a private company as a director/consultant/chairman (more so if the said judge presided in a matter involving the said company or related companies whilst he was on the bench).

The judiciary, on its own, can set up standards and guidelines for judges, and maybe our current CJ can do something about this. After all, he is concerned about judicial corruption.

Will Ahmad Fairuz deliver?

The same question was asked of previous CJs, and now we all have to wait and see whether our present Chief Justice Ahmad Fairuz can bring back the Malaysian judiciary to the stature we had during the pre-1988 period.

The elevation of High Court judges to the Court of Appeal, leaving many High Courts with no judges for some time was a sad display of our current CJ’s efficiency.

He should have made sure that new judges of the High Court was appointed at the same time, and this delay in the appointment of judges surely also contributed to the backlog and delays in court.

The sudden transferring of the Altantuya Shaariibuu murder trial from Justice KN Segara to Judicial Commissioner Mohd Zaki Md Yassin also raised some concerns.

Was the creation of new courts in Shah Alam resulting in the two Shah Alam sessions courts to be relocated outside the state of Selangor to Wisma Denmark in Kuala Lumpur linked in any way to that Altantuya Shaariibuu murder trial?

If there was going to be a lack of space in the Shah Alam court complex, should not some building in Shah Alam have been rented and renovated for the two sessions court? Was it poor planning or was it too rushed a decision to increase the number of criminal High Courts in Shah Alam?

The slowness in the appointment of the new Chief Judge of the High Court of Malaya is also making people wonder about the reasons for this delay.

It was after the former Chief Judge of the High Court of Malaya, Siti Norma Yaakob, had retired on Jan 5 this year that there was a sudden appointment of new judicial commissioners, when for an appointment of a judge or a judicial commissioner, the Prime Minister before advising the King should consult with the Chief Judge of the High Court of Malaya.

One wonders whether this consultation took place with Siti Norma before she retired.

There is still time for us to keep an eye on the actions and omissions of Ahmad Fairuz before we have to make any conclusions.

To date, he has been found wanting in many aspects. And if the fears concerning the “world’s largest” court complex turns out to be true, it will not reflect well on this head of the Malaysian judiciary.

Yesterday: About the world's biggest court complex (Pt 1)


(s0me minor editing was done to the Malaysiakini published version)

About the world's biggest court complex (Pt 1)





About the world's biggest court complex (Pt 1)
Charles Hector
Apr 5, 07 1:31pm



Malaysia under the premiership of Abdullah Ahmad Badawi is, unfortunately, still pre-occupied with having the tallest and biggest structures and buildings in the world in Malaysia. Soon, we will have what is proclaimed to be the biggest court complex in the world.

This world's biggest court complex in Jalan Duta, Kuala Lumpur, will house 30 High Courts, 21 Sessions Courts and 26 Magistrate's Courts and will be operational in May 2007.

Amusingly, the 77-court complex will only have 500 parking bays for the public and lawyers. It is situated in a place not accessible by Light Rail Transport (LRT) or good public transport facilities. It is a catastrophe waiting to happen.

A parking nightmare

If one were to drop in today at any of the High Courts or Sessions Courts or Magistrate Courts and look at the number of cases listed for the day, one will be able to see that the 6.5 parking bays per court for lawyers and the public in the new "world largest" court complex is absurd.

On April 2, in just two of the Appelate and Special Powers High Courts in Kuala Lumpur, where both judges were on leave and had no matters listed before them for the day, there were still 36 matters fixed before the Senior Assistant Registrars and the Deputy Registrars. Conservatively, taking two lawyers per matter listed (which is not realistic for more often than not it is more than two lawyers that turn up in court), this means 72 lawyers, and if they all drove cars, the 13 parking bays allocated for two courts in new court complex will surely not be sufficient.

Taking another example, in the High Court (Commercial 1), there were 18 matters listed for the same day, and again that makes it about 36 lawyers. The numbers are even higher in the Sessions Courts and the Magistrate's Courts where even the list of fresh summons cases could be about 30 to 50 and this is when the lay defendants must be present to prevent judgment in default recorded against them.

There are insuffcient parking bays, and with no LRT system in Jalan Duta, there will be utter chaos. Where will lawyers and the public park their vehicles?

Now, the courts in Kuala Lumpur are currently situated in Wisma Denmark and opposite Dataran Merdeka, Nearby, and there are LRT stations and many buses and taxis available. With the move to Jalan Duta, lawyers, their clients and the public will be in a situation akin to a hell on earth. Cases may be struck off and judgement entered while desperate lawyers and the public struggle to get their cars parked just to get to court in time.

Even court staff, who now use affordable public transport like the LRT and buses to get to the courts, will face higher cost of travel while their wages or allowances remain the same.

No reason to move

With regard to the High Courts situated now in Wisma Denmark, where the government has to pay rental to the private owners of the building, a move to “our own” building would be a good idea – but for the courts being housed in the Federal Court Building, the JKR Building, the Jalan Raja government-owned buildings and the rather new Sessions and Criminal High Court building, there really is no necessity for any move to ONE big court complex in Jalan Duta.

These buildings in front of the Dataran Merdeka have housed courts for almost 100 years, and there is no necessity to move them out to some new court complex unless the motive is just to get into the Guinness Book of Records.

The Shah Alam Court complex should have served as a very valuable lesson to our government, for here everyday lawyers and the public have to break the law and park their cars beside the road and walk sometimes about half a kilometer lugging their big bags of documents along the road and up the steep stairs just to get to court. When it rains, it is worse.

Our government did not learn from past mistakes and continues making the same mistakes over and over again causing greater loss of public funds and increased suffering for the masses.

Some serious studies of the number of people that come to court - and their mode of transport - would have not led the government into making this bad move of building a huge court complex with 77 courts at a place where there is clearly insufficient parking bays and definitely inadequate affordable public transport.

If anyone should have protested this “world's largest” court complex, it should have been our Chief Justice Ahmad Fairuz Sheikh Abdul Halim but he stayed silent and continued to point fingers of blame at the wrong targets for the failings of the Malaysian courts, especially on the issue of backlogs and delays.

He really should have set up a team to analyse matters thoroughly before he comes out and speaks to the press. He must not forget that he is the current face of the Malaysian judiciary and as such, he should protect and enhance the good name and reputation of the Malaysian judiciary and not do the opposite.

Too few judges and courts

Then, there is also the issue of a lack of judges and courts in the country. Federal Court chief registrar Datuk Tengku Maimun Tuan Mat (as reported in New Straits Times, 20/9/2006), disclosed that the number of judges in the country was low compared with other Commonwealth nations. He was quoted as saying that the Malaysian ratio is "2.4 judges to a million people - a far cry from the ratio in India (10.5), Australia (57.1), Britain (50.1) and Canada (75)."

This really is the problem for the backlog and the delays in our courts, and the only solution is to increase the number of judges and courts in the country. Our population has increased, and grown in consciousness about legal rights and human rights. The number of lawyers has also increased to more than 12,000 in Peninsular Malaysia, and so too has the number of new law graduates coming out every year. Alas, the number of courts and judges have not increased at the same rate, and that is where the real problem lies.

What we need is to have more courts and more judges. Maybe we should only move the courts from Wisma Denmark to the new court complex, as we appoint new judges and court staff for the remaining court rooms so that our ratio at least hits 10 judges to a million.

The pressure exerted by the Chief Justice on judges and magistrates to clear the backlog of cases is certainly also not the solution and may lead to great injustices.

When the heads of the judiciary are only concerned with statistics, some judges pressured will just start disposing cases summarily and with haste just to meet the quotas, the right to a fair and proper hearing and trials will suffer and more dissatisfied litigants and users of the justice system would just end up appealing to higher courts if they can afford it. Or they will just walk away disgusted with the courts and judges and the feeling that they have been deprived of the right to a fair trial.

The Chief Justice recently placed the blame on lawyers who had “up to three cases a day” who could not turn up for their cases. But it is a fact that the problem lies with the court, not lawyers, as it is the court that usually fixes hearings without first obtaining the free dates of the lawyers involved.

Several years ago, a “case management” system was introduced by the courts, and it is absurd to see today lawyers wasting so much time attending these case management sessions before a judge.

This system is not workable if the judges are doing case management for cases which, based on the judges diary, can only be fixed for trials several years down the road.

By the time the trial date comes, the judge in that court may have changed, and a new judge would have his own style and may require things done very differently before a trial starts.

In a few months or a year, a judge may be transferred or elevated, and another judge comes in with a set of different direction for case management, and the whole time consuming case management process begins all over again.

This case management system must be abolished as it not only wastes a lot of time and resources, but has been shown to be rather inefficient. If there were not so many case management matters, maybe our judges could be spending their precious time hearing substantial applications or even hearing full trials.

Now, it seems that whole mornings get wasted by the numerous “case management” sessions that result in judges only being able to proceed with trials in the afternoon.

Part 2 tomorrow


CHARLES HECTOR is a human rights activist and a lawyer.


(As there were quite a bit of gramatical errors in the Malaysiakini printed version, I did a bit of additional editing)

Wednesday, April 04, 2007

Press Statement On Court of Appeal Decision in Saravan vs Subashini

Press Statement On Court of Appeal Decision
in Saravan vs Subashini
The Catholic Lawyers’ Society views with grave concern the implications of the majority decision of the Court of Appeal in the case of Saravanan a/l Thangathoray vs. Subashini a/p Rajasingam which denied the non-muslim wife her right to seek legal redress in regards to her civil marriage and the conversion of her minor son to Islam by her (recently converted) muslim husband.
Malaysia being a multi religious country has clear and distinct laws governing muslims and non muslims particularly pertaining to family matters and it is disheartening when the very institution which is in place to govern and protect the interest of all persons in accordance with the Federal Constitution and particularly non muslims based on Civil Laws refused to adjudicate when an aggrieved non-muslim wife sought redress in respect of her marriage and the religious status of her son.
It is further disappointing to note that the Court of Appeal is of the view that the non-muslim wife should subject herself to the Syariah Courts that decides matters based on Islamic theology and especially when Section 46 (2) (b) Administration of Islamic Law (Federal Territories) Act 1993 clearly states “A Syariah High Court shall in its civil jurisdiction hear and determine all actions and proceedings in which all the parties are muslims……”.
The Federal Constitution is the supreme law of the Land and the Catholic Lawyers’ Society calls on all parties to give the Constitution its due recognition and urges that the Judiciary be for all the true guardian of enshrined constitutional rights.
Dated 29th Day of March 2007
…………sgd ……………………..
Francis Pereira
President
Catholic Lawyers Society
Tel No: 03-2096 1533

Is There Hope In Our Judiciary?

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Is There Hope In Our Judiciary?

We need to seriously strive for reforms that will re-instill public confidence in the Judiciary

by Charles Hector

courts
Far-reaching reforms are needed to re-instil public confidence in the Judiciary.
When in December 2000 , Tan Sri Hj Mohd Dzaiddin Hj Abdullah was appointed as the Chief Justice of the Federal Court, and hence the head of the Judiciary, the Bar Council had great expectations of him to rejuvenate the Malaysian Judiciary Ever since the 1988 Judicial Crisis which saw the then Lord President and two Supreme Court Judges dismissed, the Malaysian Bar never placed any great hope in Dzaiddin’s two predecessors.

But two recent events have caused the Malaysian public to question whether their hopes and aspiration for a renewed Dzaiddin-led Judiciary showing greater commitment to justice and the Rule of Law have been misplaced

First, the recent Federal Court decision in Anwar Ibrahim’s corruption case was basically an affirmation of the High Court decision which was earlier criticized not only by the Malaysian Bar but also international observers and groups. Some of the criticisms and concerns about the High Court trial of the former Deputy Prime Minster included:

  • the choice of the judge and the manner by which the judge was chosen to hear the case;
  • refusing bail;
  • expunging of evidence given under oath;
  • preventing the accused from raising every possible and conceivable defence;
  • compelling the defence to state beforehand what evidence the defence sought to adduce from various witnesses;
  • disallowing witnesses from testifying and making rulings as to relevancy without first hearing their testimony; and
  • citing and threatening defence lawyers with contempt proceedings including sentencing one of them to three month’s jail for contempt while discharging his legal duties to his client.
Second, there was the spectacle initiated by comments of a High Court Judge, while delivering a judgment in an accident case in the Penang High Court, about how a certain Court of Appeal Judge had been treating the former through the latter's judgments. In his written judgment, Justice R.K. Nathan accused Court of Appeal judge Gopal Sri Ram of making personal attacks against High Court judges, and targeting him (Nathan) for personal vilification in open court.

It may be good to recapitulate briefly the history of the Malaysian Judiciary, in particular the events that led to the slide in the public confidence of the Judiciary.

Role and Function

The Judiciary is the third arm of the government; the other two are the Executive and the Legislature. In a democracy, it is essential that there should be separation of powers among these three arms. Simply put, the Legislature (the Parliament) makes the Law. The Executive (the Prime Minister and the Cabinet) administers the affairs of state according to the Law. The Judiciary ensures that all is and was done according to law. The doctrine of separation of powers ensures a system of check and balance, and that there is no abuse of powers.

As the late Justice Eusoffe Abdulkader noted in his judgement in the Datuk Harun bin Haji Idris case, “The court stands as an arbiter in holding the balance between individuals and between the state and the individual, and will not have the slightest hesitation to condemn or strike down any statutory shelter for bureaucratic discrimination, any legislative refuge for the exercise of naked arbitrary power in violation of any of the provisions of the Constitution and equally any executive action purported to be made thereunder”

Independent and Fearless

To carry out its functions , the Judiciary must be independent, and Judges must be concerned only with upholding the cause of justice without fear or favour. The words of Sultan Azlan Shah, a former Lord President (or Chief Justice as the office is now called), during a Public Lecture in Universiti Sains Malaysia in 1986, adequately explains the need for judges to be independent:

“..The Judges are independent of all — the executive, Parliament and from within themselves — and are free to act in an independent and unbiased manner. No member of the Government, no Member of Parliament, and no official of any Government department has any right whatever to direct or influence the decision of any of the judges. It is the sure knowledge of this that gives the public confidence in the judges. The judges are not beholden politically to any government...”
In fact, at one time the Malaysian Judiciary was held in very high regard. The Chairperson of the Malaysian Bar in 1963, Datuk SM Yong, had this to say about the judiciary:-
“...every person, whether he is rich or poor, high or low, of whatever race, color or creed is equal in the eyes of the law. Justice will be administered without fear or favor...[and for this] we must have an impartial, incorruptible, and independent judiciary. Our Federal Court is such a judiciary.”
1988 Judicial Crisis

Wu Min Aun in his article, ‘Judiciary at the Crossroads’ (in Public Law in Contemporary Malaysia) best explains the events that led to the erosion of public confidence in the judiciary.

“Public confidence in the judiciary started to slide when the executive commenced its attack as a result of several decisions which went against the government. Political rhetoric surrounding the amendments to Article 121 of the Federal Constitution merely exacerbated it. It deteriorated further when the Lord President and two Supreme Court judges were dismissed.”
The Ayer Molek Case

Then there was the controversial Ayer Molek Rubber Co case, which saw the Court of Appeal criticize strongly the decision of the High Court. The Court of Appeal went so far as to say that from the facts, it may “...give the impression to right thinking people that litigants can choose the judge before whom they wish to appear for their case to be adjudicated upon.” The Court of Appeal pointed out the judge had ignored provisions of the law, and also seemed to allege that injustice was perpetrated by the court.

Then the Federal Court, upon further appeal, not only overruled the Court of Appeal judgment but “also berated the appeal judges” for “bringing the administration of justice into disrepute”. The Chief Justice, Tun Eusoff Chin, in delivering the judgment of the Federal Court asked:

“Why should the learned judges of the Court of Appeal go on a frolic of their own and find fault with the High Court judge, criticize the conduct of the applicant’s solicitors in a very disparaging manner. Their own conduct would tend to show that they were themselves biased.”
Wu Min Aun added :
“The Malaysian Bar [claimed] that the Federal Court was not properly composed in accordance with the constitution. It pointed out that one of the panel members, a High Court judge, was not qualified to sit on the Federal Court bench. It was argued that apart from its permanent judges, only Court of Appeal judges could sit as Federal Court judges if the Chief Justice nominated them. The revelation that the Federal Court might not be properly constituted added fuel to further speculation that there might have been an elementary mistake at best and ‘stacking’ of judges at worst. Whichever it was, the case did enormous damage on perception of the judiciary as an impartial adjudicator.”
The New Straits Times (3 Sept 1995) also stated in an article:
“...questions are already being asked as to why the courts and judges are speedy in hearing commercial cases, especially when big companies and big businesses were involved, and the apparent ease with which parties choose which courts to go to and which judge to seek out... This is inevitable when thousands of criminal and civil cases have been held up for years. Some remand prisoners have to languish in jail for years while waiting to stand trial.”
Poison Pen Letter

Let me again quote Wu Min Aun’s article:

“Then, in early 1996 a thirty-three page anonymous document alleging judicial misconduct surfaced. It was circulated among the legal fraternity accusing several judges of corruption, abuse of powers and personal misconduct. It was an extraordinary document containing 112 allegations comprising 39 charges of corruption, 21 of abuse of power and 52 of misconduct, immorality or other indiscretions. It claimed corrupt payments of RM50,000 with recipients graduating to accepting millions from named persons.” In July of the same year, the Attorney General stated that police investigations had revealed that the allegations contained in the poison-pen letter were “wholly untrue and baseless”
CJ's Holiday

eusoffTo ensure the independence of the judiciary, it is essential that the conduct and behaviour of a judge should not give rise to suspicion that he is not impartial. In early 1998, when photographs of Tun Eusoff Chin holidaying with a lawyer who also had appeared before the same judge, were published on the Internet, it was a matter of public concern.

Later, in mid-2000, the Minister in the Prime Minister’s Department, Datuk Dr Rais Yatim, in response to a a question about a photograph showing the Chief Justice, said that it had been intimated to the Chief Justice that this was improper behaviour and that such socialising was not consistent with the proper behavious of a judicial personality. Calls for more serious action to be taken were not heeded.

Judge Receives "Directive"

kamilIn June 2001, High Court Judge Datuk Muhammad Kamil bin Ahmad when declaring the State election held in March 1999 for the Likas Constituency in Sabah, null and void, stated that he had received a directive over the phone to strike out the two election petitions without a hearing. The Malaysian Bar viewed this as an “affront to judicial integrity and independence of the learned judge and the Rule of Law” and called for action by the authorities concerned. Alas, nothing came out of that call.

Anwar's Corruption Case

barFollowing the Federal Court decision dismissing Anwar’s appeal, Mah Weng Kwai, the President of the Malaysian Bar was quoted in Malaysiakini as saying, “But the Court of Appeal had found no miscarriages of justice and so did the Federal Court today. Anwar’s trial has gone through the due process of law, and we need to respect the decision of the court.” He was further quoted as saying, “If Anwar’s supporters, the reformasi group or the public feel that the court has been unfair, the general election is the best avenue for them to show their discontent.”

Mah was barraged with criticism from members of the Bar, the Kuala Lumpur State Bar Committee, NGOs and political parties. There were calls for his resignation.

Six days later, Mah issued another statement. Mah withdrew his earlier remarks, stating that they were merely his personal comments, not the statement of the President of the Malaysian Bar. In the second statement the Malaysian Bar expressed its dissatisfaction with the “unusual manner in which the trial itself was conducted.” This was consistent with the statement issued by R.R. Chelvarajah in his capacity as the Chairman of the Bar Council on 17 April 1999.

Mah is human and not infallible. He made a mistake, and it must be pointed out that previous presidents of the Malaysian Bar had made mistakes before.

Mah was the “soft target”, but in essence, the strong reaction to his initial remarks reflected the lawyers and the public’s dissatisfaction with the Federal Court decision.

When Dzaiddin was appointed as the Chief Justice of the Federal Court, the Kuala Lumpur Bar Committee newsletter questioned: “Can Dzaiddin Deliver?” This question must now be asked again.

Rre-arrested After Acquittal

The action of the police in re-arresting 10 men who were acquitted of quintuple murders by the Ipoh High Court on 31 July 2002 is another cause for concern. The police used the Emergency (Public Order and Prevention of Crime) Ordinance 1969, a preventive detention law with powers similar to the infamous Internal Security Act(ISA), to arrest these men. Like the ISA, after 60 days, the Minister can issue a 2-year detention order.

The 10 men had been tried in open court. The High Court Judge after considering the evidence before the court had acquitted them. The action of the police is an act of “disrespect” to the High Court and the Judiciary. Is this symptomatic of the “slide in the public [or police in this case] confidence in the Judiciary”

Impartial and Incorruptible

At its highest levels, judges of the Judiciary is made up of the High Court, Court of Appeal and Federal Court. To place too high an expectation on the Chief Justice of the Federal Court alone to stop the slide in public confidence in the Judiciary may be wishful thinking.

Judges must understand that it is their role and duty to act in an independent and unbiased manner and to treat every person, whether rich or poor, of high or low status, of whatever race, color or creed equally in the eyes of the law. Judges must without fear or favour administer justice. Of course, when they are true to their office, they may be subjected to persecution from certain quarters. They may be transferred to courts in ‘far places’. They may never be elevated to higher courts. They may be victims of false charges. They may even be removed from office. But judges must be true to their office and calling.

The Malaysian Judiciary is not directly elected by the people. The judges are appointed. In some countries, there are elections for the members of the Judiciary. Maybe, it is time for us to seriously consider whether the constitution should be amended to allow judges to be elected.

Presently the appointment of judges is conducted under a shroud of secrecy. Maybe, there is a need to consider whether the names of future judges and/or judicial commissioners should be made public, and public objections be invited and considered before appointing them.

With the advent of the Internet, there has been an increase in public criticism of judgments and judges. This is important and necessary to stimulate judicial reform and improvements in the administration of justice and to forge an impartial, incorruptible, and independent judiciary for Malaysia. In this regard, Lord Denning's words are worth repeating:

“It is the right of every man, in Parliament or out of it, in the Press or over the broadcast, to make fair comment, even outspoken comment, on matters of public interest. Those who comment can deal faithfully with all that is done in a court of justice. They can say that we are mistaken, and our decision erroneous, whether they are subject to appeal or not. All that we ask is that those who criticize us will remember that, from the nature of our office, we cannot reply their criticisms. We cannot enter into public controversy. Still less into political controversy. We must rely on our conduct itself to be its vindication. Exposed as we are to the winds of criticism, nothing which is said by this person or that, nothing which is written by this pen or that, will deter us from doing what is right."
It is easy to give up hope in our Judiciary, but if we do so all is lost. What we need more than ever before is to strive for far-reaching reforms that will re-instil public confidence in the Judiciary.

Now e-mail us and tell us what you think.