PERAK: Judicial Commissioner better behave if they want to become Judges...

Judicial Commissioners - well, this is not really a Judge.

They are really 'judges on probation' or 'contract judges'. Normally, their term is for 2 years - and thereafter they may be appointed as full judges.

Judicial commissioners perform and are vested with similar powers as High Court judges. They are appointed under Article 122AB of the Federal Constitution and will be on probation pending their elevation as High Court judges. - New Straits Times, 31/12/2009, 14 more appointed as judicial commissioners

So, guess what - their 'loyalty' and their 'independence' is always in question - for many would just betray truth and justice to be in the good books of the Prime Minister and the Government of the day, and also the Chief Justice, because it would be rather 'embarrassing' personally if they do not end up becoming judges.

The Judicial Commissioner was created by former Prime Minister Dr Mahathir Mohammad around the time of the Judicial Crisis..., and I believe, it was for the purpose of 'vetting' and getting the kind of judges that would serve the interest of the executive.

Without security of tenure - one of the safeguards to ensure independence of the Judiciary, these Judicial Commissioners are a 'cancer' to the 3rd arm of democracy, the Judiciary.

Just look at the Perak High Court decision - and would an independent Judge have made a similar ruling...

(10.34am) Judicial Commissioner Ridwan Ibrahim removes the five counsels representing the Perak Speaker on grounds that they have no locus standi to represent Sivakumar, who is from the government. He says that the state legal adviser will now appear for the Speaker. Constitutional expert Tommy Thomas, who was one of the five removed and now only allowed to hold watching brief but with no speaking rights, has withdrawn himself, saying that there's no point with no role for him to play. - New Straits Times, 3/3/2009, Showdown in Perak

But then, who is on the other side of this legal battle in Perak? Is it not that alleged 'Perak Menteri Besar' Datuk Zambry Abd Kadir and ....

Perak Menteri Besar Datuk Zambry Abd Kadir and his six executive council members have filed a suit challenging Speaker V. Sivakumar's decision to suspend and bar them from the state assembly. The suit was filed by a group of lawyers led by Datuk Hafarizam Harun at 3.55pm yesterday at the High Court.

A copy of the summons was later served on Sivakumar at his office.

Reading from a prepared statement at a press conference yesterday evening, Zambry said he and the six executive council members had applied to the High Court for declarations that:

- Sivakumar's decision to suspend and bar them from the state assembly for 18 and 12 months respectively, was against the Perak Constitution and therefore, unconstitutional, ultra vires, null and void;
- the seven of them have the right to attend all sessions of the assembly and execute their duties and responsibilities accordingly; and

- the Perak state legislative assembly is not bound by orders made or directions given by Sivakumar. - New Straits Times, 3/3/2009, Showdown in Perak: MB asks court for three rulings

Is it not true that the State Legal Advisor already acted for Zambry Abd Kadir in the KL suit, between Nizar and Zambry? How can the State Legal Advisor act for both sides - once for Zambry Abd Kadir and once against? That is why I believe that the Judicial Commisioner erred in law...

I believe that it was also wrong for the State Legal Advisor to appear on behalf of Zambry Abd Kadir in the KL suit - because the question of the status and position of Zambry is still in question.

Ipoh Barat MP M. Kulasegaran said it was a clear conflict of interest that the legal advisor who acted for Perak Mentri Besar Datuk Dr Zambry Abdul Kadir in a case last week was now defending State Assembly Speaker V. Sivakumar in a case brought forward by Dr Zambry.

“How can he act for both plaintiff and defendant? It’s a clear case of conflict,” said Kulasegaran, who was representing Sivakumar. - Star, 3/3/2009,'Conflict of interest' in injunction hearing

I looked at that section 24 in GOVERNMENT PROCEEDINGS ACT 1956 (REVISED 1988), and I see the words used is "may", and not the word "shall" - and this means that it is optional, and the State can be represented by other lawyers. Further, there seem to be nothing here that states this also applies to the Speaker.

When it is a legal battle between different part of the State - you could not say that it was mandatory that everyone is represented by the State Legal Advisor..

If so, why if the State Legal Advisor not representing the yet-to-resign Menteri Besar of Perak, Nizar, in the KL suit?

I believe that the Judicial Commissioner erred in law...

24. Appearance of law officers.

(1) Notwithstanding any written law-

(a) in civil proceedings by or against the Federal Government a law officer, the Parliamentary Draftsman or a Federal Counsel, or, in the case of the States of Sabah and Sarawak, a legally qualified member of the Federal or State Attorney General's Chambers authorised by the Attorney General for the purpose; and

(b) in civil proceedings by or against the Government of a State a law officer, the Parliamentary Draftsman or a Federal Counsel authorised by the Legal Adviser of such State, and, in the case of the States of Sabah and Sarawak, the State Attorney General or any legally qualified member of the State Attorney General's Chambers authorised by the State Attorney General for the purpose;

may appear as advocate on behalf of such Government and may make and do all appearances, acts and applications in respect of such proceedings on behalf of the Government.

(2) Notwithstanding any written law in civil proceedings to which a public officer is a party-

(a) by virtue of his office; or

(b) in his personal capacity, if the Attorney General certifies in writing that it is in the public interest that such officer should be represented by a legal officer;

[NOTE: For Sabah and Sarawak substitute the following paragraph for paragraph (b) of section 24(2):

"(b)in his personal capacity, if-

(i)in the case of a Federal Officer, the Attorney General certifies in writing; and

(ii)in the case of a State Officer, the State Attorney General certifies in writing;

that it is in the public interest that such officer should be represented by a legal officer;" - See L.N. 67/75.]

a legal officer may appear as advocate on behalf of such officer and shall be deemed to be the recognised agent of such officer by whom all appearances, acts and applications in respect of such proceedings may be made or done on behalf of such officer.

(3) An advocate and solicitor of the High Court duly retained by the Attorney General in the case of civil proceedings by or against the Federal Government or a Federal officer, or by the Legal Adviser, or, in the case of the States of Sabah and Sarawak, by the State Attorney General in the case of civil proceedings by or against the Government of a State or a State officer, may appear as advocate on behalf of such Government or officer in such proceedings.

(4) In civil proceedings to which the Attorney General is a party under section 8 or section 9, a law officer, the Parliamentary Draftsman or a Federal Counsel authorised by the Attorney General for the purpose, and, in the case of the States of Sabah and Sarawak, a legal officer, may appear as advocate and make and do all appearances, acts and applications in respect of such proceedings on behalf of the Attorney General.

I am also interested about this 'locus standi' for lawyers? Normally, it is used when it comes to parties of a suit - not lawyers of parties.

The right to be represented by a lawyer of your choice is fundamental - and surely, it is absurd, for States...Speakers,..Menteri Besars, ...to be denied this right.

The other odd thing in the Judicial Commissioners decision was that the lawyers could still be present - but with "no speaking rights".

Now, in Malaysia, like in other Commonwealth jurisdiction, even a lawyer who is not a lawyer of the parties, or is not even holding watching brief, do have the right to speak and they do so as 'friends of the court' (amicus curiae)

Amicus curiae or amicus curiæ (plural amici curiae) is a legal Latinbrief, a testimony that has not been solicited by any of the parties, or a learned treatise on a matter that bears on the case. phrase, literally translated as "friend of the court", that refers to someone, not a party to a case, who volunteers to offer information on a point of law or some other aspect of the case to assist the court in deciding a matter before it. The information may be a legal opinion in the form of a brief, a testimony that has not been solicited by any of the parties, or a learned treatise on a matter that bears on the case.

Now, did the Judicial Commissioner adjourn proceedings until the Speaker could properly brief the State Legal Advisor, .... or appeal that ruling left him 'unrepresented'..or did the Judicial Commissioner proceed with the hearing? If he did proceed, then do we need to further question the 'independence' or the 'fairness' of the proceedings...

So, was that decision of the Judicial Commissioner an independent unbiased decision, or was it a decision made by a person who does not want his chances to be elevated as a Judge jeopardized?

That is why we must get rid of 'Judicial Commissioners' in Malaysia. A suitable person must immediately be appointed JUDGE. He then will have security of tenure - knowing that he cannot be removed until retirement save for something really exceptional.