In my opinion, Sri Ram, MP Ramkarpal is wrong about Daim's right to call for the Chief Justice and the President of Court of Appeal to RESIGN...
Any Malaysian or even others can call for the Chief Justice, the President of the Court of Appeal, the Attorney General and even the Prime Minister to RESIGN...
Even Anwar Ibrahim and PM Mahathir can call, ask or even 'demand' the current Chief Justice and the President of the Court of Appeal to resign...that is their right. BUT no judge need to 'obey' and resign - to resign or not is their choice ...
Personally, I also will call on the Raus bin Sharif and Zulkefli bin Ahmad Makinudin to resign...in fact, I also called on them to refuse the extension of tenure...
And, my reasons may be different from the reasons being argued in Court by the Malaysian Bar an others - being that the appointment and extension of their appointment beyond their age of retirement was wrong in law - with reference to our Constitution and justice.
For me, the concern is 'INDEPENDENCE OF THE JUDICIARY' - in particular the violation of the principles behind the safeguard 'Security of Tenure'.
Once a judge is appointed, he should not be able to be removed until the end of his tenure, which should be FIXED, the mandatory retirement age - which in Malaysia today is 66 years.
If a judge's term in office can be extended by the King, Prime Minister, Chief Justice or any other....then, reasonably this is a serious threat to the PERCEPTION of the 'Independence of the Judiciary' - would not a judge be influenced in the way he carries out his/her duties of a judge by the possibility of extension of tenure beyond retirement age? Will he possibly pass judgments that would seen as 'favourable' to person/s with such power who may reward him/her with an 'extension' of his/her tenure? Well, that may well impact on the 'public perception' of the independence of the Malaysian Judiciary? Would the foreign investor even be confident enough to have disputes with Malaysian companies(or even government owned companies or GLCs) resolved in Malaysian courts? If they want any such disputes resolved in any other country's courts - then does not reflect on the confidence they have in Malaysian courts and judges to act justly?
There are FLAWS, in my opinion, even today in our Federal Constitution that needs to removed immediately...as soon as possible?
THE POWER TO EXTEND THE TENURE OF FEDERAL COURT JUDGES FOR AN ADDITIONAL 6 MONTHS BEYOND THE AGE OF RETIREMENT, 66 YEARS..
Some judges get this extension, some do not ...that should already raise a 'red flag' - and for me, this clearly violates the principle behind that safeguard known as 'security of tenure'...
THE POWER TO EXTEND THE TENURE FOR A FURTHER UNDEFINED PERIOD AS 'ADDITIONAL JUDGES'...
This also makes the principle behind 'security of tenure' meaningless..
We also need to look at the question of Judicial Commissioner, created by amendments to the Constitution, after the 1988 Judicial Crisis, I believe,...and other matters.
In my opinion, there are some flaws that exist in our Federal Constitution - that really must be studied, and hopefully future amendments will strengthen the Independence of the Malaysian Judiciary, and do not detract from the basic principles behind the safeguard to ensure this independence known as 'Security of Tenure".
I have looked into these matters, and had put forward a motion at the Malaysian Bar AGM, which I elected to remove for certain reasons - which I would most likely table again to be debated and voted.(See that Motion below for those who want to know more).
NOW, the Federal Court has empaneled a coram of 7 who will soon be hearing and deciding on the Malaysian Bar's and other application. Now, they will be deciding on the future of their 2 heads of the Malaysian judiciary, who may have influenced their appointments and/or elevations in the Judiciary. Remember, the application for this to be heard by 'already retired' judges were denied?
So, will these judges decision have any bearing that we have a new government after GE14 - PROBLEM, they are supposed to be 'Independent' - their decision should not matter on who is the PM or government?
Whatever the decision of the court, there will be problems about 'perception' - If the allow the application(many may believe this was because we have a new government after GE14)...If they say that all is OK with the appointment and extension of the tenure of CJ and/or President of COA ...then some may say, these 'judges' sold out to Najib and had no guts to decide against their 2 big bosses...Either way, it will not be good...and there will be doubts ...and possibly a 'loss of respect' to some(or all) Judges on the coram.
AS SUCH, it is best that Raus bin Sharif and Zulkefli bin Ahmad Makinudin elect to RESIGN on their own, without even waiting for the Court to make any decision - and this will be best for Malaysia, and more importantly for the Malaysian judiciary...
As mentioned earlier, no one can FORCE judges to resign - not even the Prime Minister...not even the Parliament...not even the King..
Whether the judge/s went and met Daim (who is not even a Minister or in the Cabinet) or even PM Mahathir or Anwar, it really is up to the judge...they are free to meet anyone ...I am curious as to how Sri Ram knew that Daim 'demanded' that they resign? Did Daim inform Sri Ram, or did Raus or Zulkefli inform him? Did Sri Ram also meet with the said judges?
Whether the judge/s went and met Daim (who is not even a Minister or in the Cabinet) or even PM Mahathir or Anwar, it really is up to the judge...they are free to meet anyone ...I am curious as to how Sri Ram knew that Daim 'demanded' that they resign? Did Daim inform Sri Ram, or did Raus or Zulkefli inform him? Did Sri Ram also meet with the said judges?
It must also be noted that judges should really be careful in their 'socializing' - they should always conduct themselves in a manner not to give others the perception that they are not 'independent'...hence judges should not be socializing with lawyers, politicians,etc
Now, things are going to become even more complicated ...if the Court rules that there is nothing wrong with the whole extension of tenure...WHAT HAPPENS THEN?
UN Basic Principles on the Independence of the Judiciary - Chief Justice and imminent 'judicial crisis'?
Chief Justice, even after retirement, for 3 more years? Wrong or Right?
Hopefully CJ Raus will quit - Resolution of the Malaysian Bar
Bar approves boycott of CJ and COA president in social events(Malaysiakini)
Motion to promote and protect
Judicial Independence in Malaysia, to abolish Judicial Commissioners, ensure
security of tenure is a real safeguard, and remove Prime Minister’s power in Judicial
Selection and Appointments
WHEREAS
1. The Judiciary, being the third
branch of government, is an important branch of government, a necessary check
and balance to prevent wrongdoings and errors of both the Executive and the
Legislature. In conflicts, even with the ruling governments of the day, the
people rely on the Judiciary to ensure that justice is done – thus the
importance of an independent Judiciary.
2. Clause
2 of the Basic Principles on the Independence of the Judiciary, adopted by the
United Nations General Assembly vide General Assembly resolutions 40/32 of 29
November 1985 and 40/146 of 13 December 1985, states, ‘The judiciary shall decide matters before them impartially, on the
basis of facts and in accordance with the law, without any restrictions,
improper influences, inducements, pressures, threats or interferences, direct
or indirect, from any quarter or for any reason.’
3. The
power or the ability to influence appointment, elevations, transfers and
extension of tenure of Judges can be used as a carrot or a stick that can
undermine the independence of the Judiciary.
4.
Clause 10 states that, ‘Persons selected for judicial office shall be individuals of integrity
and ability with appropriate training or qualifications in law. Any method of
judicial selection shall safeguard against judicial appointments for
improper motives.’
5. The
Bangalore Principles Of Judicial Conduct 2002 is intended to establish
standards for ethical conduct of judges. They are designed to provide guidance
to judges and to afford the judiciary a framework for regulating judicial
conduct. They are also intended to assist members of the executive and the
legislature, and lawyers and the public in general, to better understand and
support the judiciary. These principles presuppose that judges are accountable
for their conduct to appropriate institutions established to maintain judicial
standards, which are themselves independent and impartial, and are intended to
supplement and not to derogate from existing rules of law and conduct which
bind the judge.
6.
The
Bangalore Principles Of Judicial Conduct 2002 lays out necessary values and
principles required to be held sacrosanct by every judge. The first value is ‘Independence’ and the principle is
stated as follows, “Judicial independence is a pre-requisite to the rule of law
and a fundamental guarantee of a fair trial. A judge shall therefore uphold and
exemplify judicial independence in both its individual and institutional
aspects.”
7.
Application
1.1 of the said principle, states as follows, ‘A judge shall exercise the judicial function independently on the basis
of the judge's assessment of the facts and in accordance with a conscientious
understanding of the law, free of any extraneous influences, inducements,
pressures, threats or interference, direct or indirect, from any quarter or for
any reason.
8.
Application
1.2 states, ‘A judge shall be
independent in relation to society in general and in relation to the particular
parties to a dispute which the judge has to adjudicate.’
9.
Application
1.3 states, ‘A judge shall not only be
free from inappropriate connections with, and influence by, the executive and
legislative branches of government, but must also appear to a reasonable
observer to be free therefrom.
10. Application 1.4 states, ‘In performing judicial duties, a judge shall be independent of judicial
colleagues in respect of decisions which the judge is obliged to make
independently.
11. Judicial independence is thus a
pre-requisite to the rule of law, and to ensure this certain safeguards must be
put in place, from selection, appointment and during tenure.
SELECTION
AND APPOINTMENT OF JUDGES
12. In Malaysia,
judges of the superior courts, being the High Court, Court of Appeal and
the Federal Court, ‘…shall be appointed by the
Yang di-Pertuan Agong, acting on the
advice of the Prime Minister, after consulting the Conference of
Rulers…’(Article 122B(1) Federal Constitution.). Article 122B(2) states,
‘Before tendering his advice as to the appointment under Clause (1) of a judge
other than the Chief Justice of the Federal Court, the Prime Minister shall
consult the Chief Justice’. For other appointments, there is a need for
consultation with various head judges. Note that the Chief Justice of the
Federal Court is also appointed on the advice of the Prime Minister.
13. The
meaning of ‘acting on the advice…’ is stated in Article 40 entitled,
‘Yang di-Pertuan Agong to act on advice’.
Article 40(1A) states, “ In the exercise of his functions under
this Constitution or federal law, where the Yang di-Pertuan Agong is to act in
accordance with advice, on advice, or after considering advice, the Yang di- Pertuan Agong shall accept and act in accordance with such
advice.’
14. As
such, when any provisions in our Constitution states that the Yang Di Pertuan
Agong is to act on the advice of the Prime Minister or the advice of any other,
the Yang Di Pertuan really has no choice but to do as he had been ‘advised’.
15. It is obvious that the Prime Minister has simply too much
power and influence in the selection and appointment of judges in Malaysia. To
compound matters, the fact that UMNO lead coalition(previously known as the
Alliance(Perikatan) and now the Barisan Nasional) have been governing Malaysia
since Independence in 1957, means that this power has been continuously vested
with Prime Ministers from just one party.
16. Judicial Appointment Commission Act 2009 stipulate in
section 21 (1) ‘The functions of the Commission
are-(a) to select suitably qualified persons who merit appointment as
judges of the superior court for the Prime Minister's consideration;…’. In
brief the Commission makes mere recommendations to the Prime
Minister, who is not bound to accept these recommendations.
17. The four
eminent persons, who are not members of the executive or other public service,
appointed by the Prime Minister..(section 5(1)(f),
as members of the 9-person Commission can also be easily removed. Section 9 (1) states that ‘The appointment of any
member appointed under paragraph 5(1)(f) may at any time be revoked by
the Prime Minister without assigning any reason therefor.’
18. The Malaysian Bar has called for a more independent
selection and appointment commission.
19. ‘…The three bar associations in Malaysia have declared that
they reject the current practice of giving the prime minister a say in the
appointment and promotion of judges, according to Malaysian Bar president
Steven Thiru…the Malaysian Bar, the Sabah Law Association and the Advocates’
Association of Sarawak were in fact in agreement that the executive branch of
government should have no part at all in the process…He said the present system
placed inordinate powers in the hands of the prime minister, who could veto
without justification the recommendations of the Judicial Appointments
Commission (JAC)…“While the executive is entitled to express its views, the
final recommendation to the Conference of Rulers should emanate only from the
JAC,” he added….’(Free Malaysia Today, 14/1/2017)
SECURITY OF TENURE
20. Security of tenure,
is a another very important safeguard,
to ensure judicial
independence is by granting life tenure or a tenure that ends on a fixed date for judges, which
ideally frees them to decide cases and make rulings according to the rule of
law and judicial
discretion, even if those decisions that may be politically unpopular or
opposed by powerful interests.
21. Article 11 of the Basic Principles
state, ‘11. The term of office of judges, their independence, security,
adequate remuneration, conditions of service, pensions and the age of
retirement shall be adequately secured by law.’
22. On
security of tenure, Clause 12 of the Basic Principles on the Independence of the
Judiciary states, ‘Judges,
whether appointed or elected, shall have guaranteed tenure until a mandatory
retirement age or the expiry of their term of office, where such
exists.’
23. In
Malaysia, the retirement age of judges is now 66 years. Our Federal
Constitution in Article 125(1) stipulates. “…a judge of the Federal Court shall
hold office until he attains the age of sixty-six years…’
24. The
Clause 1 of United Nations Basic Principles on the Independence of the
Judiciary states 1 that, ‘The
independence of the judiciary shall be guaranteed by the State and enshrined in
the Constitution or the law of the country. It is the duty of all governmental
and other institutions to respect and observe the independence of the
judiciary.’
25. In
Malaysia today, there are several matters that need to be addressed to improve
the ‘independence of the Judiciary’. One of which is security of tenure, which
must mean that judges once appointed, not only cannot be removed before the end
of their fixed tenure(their retirement age), but also not cannot have their term as judge extended by
actions of the Prime Minister, or even the Chief Justice.
26. The
ability to extend the tenure of some selected judges beyond the prescribed retirement
age, opens the door to possible questions about their independence. Why did
this judge get an extension of tenure but not another judge? Did he/she get the
extension because he/she is favoured by the Prime Minister and/or government of
the day, and as such ought to be rewarded – an extension of tenure? Such
questions and possibilities, impacts negatively of the perception of the
independence of the Malaysian judges and judiciary.
EXTENSION OF TENURE OF FEDERAL COURT JUDGE BY
A FURTHER 6 MONTHS
27. Article 125(1) Federal Constitution states, ‘
Subject to the provisions of Clauses (2) to (5), a judge of the Federal Court
shall hold office until he attains the age of sixty-six years or such later time, not being later than
six months after he attains that age, as the Yang di-Pertuan Agong may approve.’
The problem is that some judges may get the 6 month extension, but not others.
28. To give full effect to the safeguard, it is
best that there be only one mandatory retirement age. The Constitution could be
amended to extend this retirement age to 70 or even 80, but there must be one
definite date that ends the tenure of a judge.
APPOINTMENT OF ADDITIONAL
JUDGES OF THE FEDERAL COURT
29. Article 122(1A) Federal Constitution, states.
‘Notwithstanding anything in this Constitution contained, the Yang di-Pertuan
Agong acting on the advice of the Chief Justice of the Federal Court may
appoint for such purposes or for such period of time as he may specify any
person who has held high judicial office in Malaysia to be an additional judge
of the Federal Court…’
30. The biggest problem is there is no reasons
stipulated for why an already retired superior court judge can and should be appointed
as an ‘additional judge’. The specific reasons must be stated in the
Constitution and/or law to prevent abuse. Possibly, it could be for a very
specific purpose, like a particular case, whose coram best not include
currently sitting judges, or maybe for other very special and exceptional reason.
31. The second problem, is that there is no
length of time that is stipulated for the duration of these appointment of
‘additional judges’, and as such this also affects public perception of
judicial independence. Of late, one judge was appointed additional judge for 3
years, whist another for just 2 years. Will someone else in the future be
appointed for 6 months or even 10 years? As such, there must be clear
stipulation be in the form of a fixed time period, or a flexible term which
ends when a particular case that brought about the appointment comes to an end.
32. Given that the Chief Justice is vested with
this power, as the King will have no choice but to act ‘…on the advice of the
Chief Justice of the Federal Court…’, it is most unhealthy. Note that currently
even the Judicial Appointment Commission is not vested with the power to
provide recommendations to the Chief Justice of the Federal Court, only the
Prime Minister.
33. Amendments are needed to ensure such
appointments of additional judges are independent, and there is to need to state
the specific reasons that will justify such appointments, and more importantly
the duration of such appointments. The remuneration should also be specified.
JUDICIAL COMMISSIONERS
34. Article 122AB
(1) states, ‘For the
despatch of business of the High Court in Malaya and the High Court in Sabah
and Sarawak, the Yang di-Pertuan Agong acting on the advice of the Prime
Minister, after consulting the Chief Justice of the Federal Court, may by order
appoint to be judicial commissioner
for such period or such purpose as may be specified in the order any person
qualified for appointment as a judge of a High Court; and the person so
appointed shall have power to perform
such functions of a judge of the High Court as appear to him to require to
be performed; and anything done by him when acting in accordance with his
appointment shall have the same validity
and effect as if done by a judge of that Court, and in respect thereof he shall
have the same powers and enjoy the same immunities as if he had been a judge of
that Court.’
35. This 1994 Constitutional amendment, coming
after the Judicial crisis of 1988, created these new ‘Judicial Commissioners’.
Since then, it seems that all Judges of the High Court, had been first Judicial
Commissioners.
36. Judicial commissioners exercise the same
powers as High Court judges, but they unlike Judges, do not enjoy all the safeguards
to protect their independence, especially security of tenure. Judicial
Commissioners could be seen as ‘probation’
judges, and that is unacceptable but also disrespectful. Will only judicial
commissioners who make judgments, etc in accordance with what the Prime
Minister (or Government) be later appointed as High Court judges?
37. Raja
Aziz Addruse, in his article Judicial Appointments : Who has the Last Say,
said ‘…Given that he is a judge ‘on
trial’ during his ‘probation’ period, and without any security of tenure, the
ability of a judicial commissioner to be independent and not to be influenced
by personal consideration in making judicial decisions, is questionable…’ ‘.
38. It must be pointed out also that “…At
least five Judicial Commissioners (JCs) were not elevated to High Court Judges
over the last five years because they failed to meet the criteria of the
Judicial Appointments Commission (JAC).Chief Justice Arifin Zakaria, who is
also JAC chairman, declined to offer more specific reasons why the judges on
probation failed to make High Court judge….Arifin said the JAC met once a month
to evaluate the JCs who were on probation for two years.’ (FMT News, 27/3/2017).
39. Judges
should be appointed directly, without having to go through any ‘probation’ or
‘on trial’, and on appointment, they must immediately enjoy security of tenure,
where the end date must be their fixed retirement age.
40. As
such, Judicial Commissioners should be abolished, and qualified persons should
be directly appointed as judges, without the embarrassment of being put on
‘probation’ or ‘on trial’.
41. It
may be best that all current sitting Judicial Commissioners be forthwith
appointed as Judges.
42. The
perception that the Malaysian judiciary is truly independent is most important.
THEREFORE, it is hereby resolved
that:
A.
That the Malaysian Bar calls for the
amendments of the Federal Constitution and law, to ensure that security of
tenure as a necessary safeguard is not compromised or undermined. No judge’s
tenure should be extended beyond a fixed mandatory age of retirement.
B. That the Malaysian Bar calls for the abolition of
Judicial Commissioners, and that all qualified persons be immediately appointed
Judges with a security of tenure;
C. That the Malaysian Bar calls for the creation of an
Independent Judicial Appointment Commission, whose recommendation and/or advice
be directly submitted to the Yang Di Pertuan Agung for appointment of judges,
and also elevation as Judges of Court of Appeal and/or Federal Court;
D. That the Malaysian Bar calls for the removal of the Prime
Minister from playing any role in the selection, appointment, elevation and
transfer of Judges in Malaysia.
E. That the Bar Council be empowered to do all that is
necessary to protect and promote the independence of the judiciary, and
especially preventing the weakening of security of tenure as a necessary
safeguard.
(The above is simply a proposed Motion - not yet debated, voted on, or became a Resolution - As such, it is thus far my opinion, of things that need happen to make the Malaysian judiciary more independent and respected)
DAP MP worried Daim may cause perception of judicial interference
DAP's Bukit Gelugor MP Ramkarpal Singh said he is concerned that a
purported meeting between Daim Zainuddin, a member of the Council of
Eminent Persons, and the country's top judges to ask them to resign may
give rise to the perception of judicial interference.
He said this in reference to former federal court judge Gopal Sri Ram who claimed
Chief Justice Md Raus Sharif and Court of Appeal president Zulkefli
Ahmad Makinudin were told to resign when meeting Daim at his office.
"Such an action by Daim, if true, cannot be condoned and I am in
agreement with Sri Ram that Daim ought not to interfere in such matters
as he has absolutely no standing to do so.
"The perception that there might be meddling (particularly from
parties seen to be close to the government) in the appointment or
removal of the CJ and PCA must be avoided at all costs and Daim should
know better than to get involved in it (assuming the claim by Sri Ram is
true) which may well give rise to such perception," Ramparkal said in a
statement today.
Ramkarpal, a lawyer, said he too believed that the appointment of Md
Raus and Zulkefli were unconstitutional but stressed that their removal
must be in accordance with the rule of law.
"I have always been of the view that the appointments of Raus and Zulkefli as
the chief justice and Court of Appeal president respectively are unconstitutional and have offered my reasons for this in the past and do not wish to repeat the same here.
the chief justice and Court of Appeal president respectively are unconstitutional and have offered my reasons for this in the past and do not wish to repeat the same here.
"However, the removal of Raus and Zulkefli must be in accordance with
the rule of law and Daim’s involvement in this (if true) is certainly
contrary to the said rule of law," he said.
Ramparkal pointed out that the challenge against Raus and Zaulkefli's appointments is already pending in the Federal Court.
"The Federal Court should fix a date for decision of the same as soon
as possible in light of the fact that the matter is quite obviously one
of urgency which needs to be resolved quickly in the interests of
justice," he said.
Last year, Raus and Zulkefli were appointed as additional judges in order to stay on as Chief Justice and Court of Appeal president.
The "additional judge" route was seen as an attempt to bypass the 66
years and six months age limit for the position of chief justice and
Court of Appeal president.
Their appointments were pursuant to Article 122(1A) of the Federal Constitution.
Article 122(1A) states that "Notwithstanding anything in this
constitution contained, the Yang di-Pertuan Agong acting on the advice
of the chief justice of the Federal Court may appoint for such purposes
or for such period of time as he may specify any person who has held
high judicial office in Malaysia to be an additional judge of the
Federal Court, provided that no such additional judge shall be
ineligible to hold office by reason of having attained the age of 66
years".
Prior to these appointments, former chief justice Abdul Hamid Mohamad had opined that Article 122(1A) cannot be a backdoor to extend the tenure of the chief justice. - Malaysiakini, 10/6/2018
Daim demanded CJ and COA president resign, Sri Ram claims
Council of Eminent Persons chairperson Daim Zainuddin has allegedly
demanded the resignations of Chief Justice Md Raus Sharif and Court of
Appeal president Justice Zulkefli Ahmad Makinudin.
Former Federal Court judge Gopal Sri Ram claimed it was "an open
secret" that this occurred during a meeting at Daim's private office.
It is unclear when the meeting occurred. Malaysiakini has contacted Raus and sources close to Daim for confirmation.
Sri Ram said Daim, who is also a lawyer, should not have demanded
Raus and Zulkefli's resignations, adding that it was unconstitutional
for anyone other than the prime minister to summon the head of the
judiciary.
"Although this may have been motivated by the best of intentions, what happened is quite wrong.
"Daim is not the prime minister, and even if he had been asked by the
prime minister to do what he did, he should have declined and left it
to the attorney-general, the prime minister and the cabinet to handle
this.
"After all, we do not want to return to the old days when there was
no respect for the separation of powers and the due observance of
constitutional requirements," Sri Ram said in an email to Malaysiakini.
The senior lawyer said that by "acceding" to Daim's invitation, Raus and Zulkefli had only made matters worse.
"With respect, had they believed that their continued occupation of
their respective office was justified, they should have dignifiedly
declined the invitation," he said.
Raus and Zulkefli's current appointments as chief justice and appellate court president respectively have attracted controversy.
This is due to the fact that their tenures were extended beyond the
mandatory age of retirement for federal judges. The method through which
the extensions were given was also questionable.
Sri Ram said that if the duo had rejected their extension they would
not have had to suffer the "humiliation" of being treated "no better
than office boys."
As such, he urged the duo to resign at once. Alternatively, he added,
the attorney-general should inform the courts that the government no
longer supported their appointments as constitutional. - Malaysiakini, Malaysiakini, 10/6/2018
No comments:
Post a Comment