Saturday, August 25, 2018

Better if a confirmed Judge allowed the application to sell Equanimity? Judge and JC same powers but...?

'...Judicial Commissioner Kadijah Idris allowed the application to sell the ship[Equanimity super­yatch) by 1MDB, its subsidiaries 1MDB Energy Holdings Ltd and 1MDB Global Investment Ltd, and the government...'

It would have been so much better if it was a 'JUDGE' and not a 'Judicial Commissioner', who really is just a 'judge on probation' who does not even have 'security of tenure' until retirement age...JC Khadijah Idris may have made the correct judgment but one could wonder whether concern of whether she will be made a Judge in the future had any part to play...? Probably not

Malaysian Judiciary need to be reformed - Necessary safeguards like 'SECURITY OF TENURE'(the assurance given to judges that they cannot be 'dismissed' or removed until they reach their retirement age of 66, even if they make judgments not favourable to the government of the day an important safeguard to protect judicial independence...

'Judicial Commissioners' did not exist before 1994 (it was created after the Judicial Crisis of 1988). Why? Was it for the government to MAKE SURE they got judges that 'listened to them'..or ' decided in line with government's positions', that demeaning 'probation' for judges...??? 

Judges in Malaysia must be directly appointed as Judges...and no more embarassingly placed on 'probation' of sorts..

REFORM needs the removal of the powers/influence of the Prime Minister and the government in the appointment, transfers and even elevation of judges...

Will Judicial Commissioner Kadijah Idris later be appointed a Judge...or will she not be just like the '…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...'


Some would argue that this 'probation' is a good thing we can make sure that they really can perform the job they were appointed to do. Well, probation maybe OK for ordinary workers...but certainly NOT for Judges...

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.

Court grants application to sell ‘Equanimity’ 

KUALA LUMPUR: The Admiralty Court here has granted an application by the 1Malaysia Development Bhd (1MDB) Group and the government to sell the Equanimity super­yacht, which is allegedly linked to businessman Low Taek Jho.

Judicial Commissioner Kadijah Idris allowed the application to sell the ship by 1MDB, its subsidiaries 1MDB Energy Holdings Ltd and 1MDB Global Investment Ltd, and the government pursuant to Order 29 Rule 4 of Rules of Court 2012.

The four plaintiffs filed the application to enable them to evaluate the asset and sell the vessel.
Senior Federal Counsel Alice Loke acted for the government.

1MDB Group’s counsel Ong Chee Kwan told this to reporters after the proceedings in chambers yesterday.

“The court granted us an order to sell the vessel pending the determination of the action (litigation). Our next step is to get the vessel sold as it is a diminishing asset and its cost of maintenance is very high.

“We need to sell it as soon as possible because the longer you keep it, (the more) the value of the vessel will diminish at the end of the day,” he said.

When asked by reporters whether there was any response from the vessel’s owner, he said: “We served the application to the vessel (to the defendant) on Wednesday and if they are interested to defend the matter, they should enter appearance and come before this court.

“But we have not received any appearance as of today,” Ong said, adding that the next step was to get application on judgment in default.

“We hope to complete the sale of the ship as soon as possible and before the end of the year. It will be sold under public tender,” he said.

Another counsel, Jeremy M. Joseph, said those interested in the proceed of sale could come to court.

In explaining further on the ownership issue, he said whoever was declared as the owner of the vessel would be able to claim the money in court.

“Once we get the judgment in default, we are entitled to claim the proceeds. We know what is required to get the judgment in default.

“At the moment, our main focus is to ensure the vessel is sold,” he said.

He also said they had yet to identify the buyer of the vessel as their next step was to get the vessel appraised and valued, and there could be a condition survey on the vessel. 

They would then speak to specialists to ensure the sale of the vessel at the best possible price.

The 1MDB Group and the government have named the owner of the ship as Equanimity of Cayman Islands, the sole defendant in the suit filed via the law firm of Jeremy Joseph and Partners on Thursday.

On Aug 6, a writ of summons was issued to the owner of the vessel and to Wilson Yacht Management Ltd, the company that operates Equanimity.

The superyacht arrived in Malay­sia on Aug 7 after being handed over by the Indonesian authorities.

Equanimity was seized off the coast of Bali by Indonesia in Feb­ruary at the request of US authorities as part of a multi-billion-dollar corruption probe launched by the US Department of Justice over 1MDB.

In the notice of application, the four plaintiffs are asking for the sale of the vessel, bunkers, fuel, lubricants and other consumables on board to be conducted through an open tender or a private treaty by the sheriff of the Admiralty Court Kuala Lumpur.

The plaintiffs want the sheriff to receive bids or offers for the vessel and the bunkers, and for the purchase price to be paid to the sheriff in US dollar, euros or ringgit. - Star, 25/8/2018

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