Serving Judges Must Not Be Considered Or Appointed As Attorney General, To Also Preserve The Independence Of The Judiciary(MADPET)

Media Statement – 26/12/2022

Serving Judges Must Not Be Considered Or Appointed As Attorney General, To Also Preserve The Independence Of The Judiciary

The fact that names of judges being considered to be appointed as Attorney General have been reported in media is a threat that may affect the perception of the independence of judges, noting also that the courts do hear cases involving Ministers, politicians and the government are parties of suits.

Impact on Perception of Independence of Judiciary

One media report suggested that 3 serving judges, being Federal Court judge Zabidin Diah and Court of Appeal judges Yaacob Sam and Abdul Karim Abdul Jalil are being considered for appointment as the next attorney-general (AG). (FMT, 21/12/2022). An earlier media report mentioned serving Court of Appeal judge Datuk Seri Kamaludin Md Said and serving High Court judge Datuk Wan Ahmad Farid Wan Salleh. (Star, 16/12/2022).

Serving judges ought not be considered or appointed as Attorney General or to any other positions by the Prime Minister, Ministers and/or the government.

This is also because such a move has a tendency to impact negatively on the fact and/or perception of the independence of the Malaysian judiciary and individual judges.

Would we be confident of the independence of these judges in cases where one of the parties is the Prime Minister or government?

After a High Court, Court of Appeal and Federal Court judge is appointed, safeguards to ensure the independence of the judiciary comes into effect, including security of tenure until the retirement age of 66. This independence also includes independence from influence and/or orders from the Prime Minister and the government.

Attorney General only need qualification to be Federal Court Judge

It is best that a senior public officer, being a Federal Counsel or Prosecutor from within the Attorney General’s Chambers, or any lawyer be appointed as the Attorney General.

Remember that all that Article 145 of the Federal Constitution states about the needed qualification to be appointed Attorney General is that a ‘…person who is qualified to be a judge of the Federal Court…’. It does not say a serving or retired Judge must be the Attorney General.

All that is required for a person to be qualified to be a judge of the Federal Court, and the meaning of this is stated in Article 123 which says that he/she must only be ‘…(a) he is a citizen; and (b) for the ten years preceding his appointment he has been an advocate of those courts or any of them or a member of the judicial and legal service of the Federation or of the legal service of a State, or sometimes one and sometimes another…’

MADPET (Malaysians Against Death Penalty and Torture) takes the position that a serving Federal Court or Court of Appeal or High Court judge must never be considered, let alone be appointed by the King on the advice of the Prime Minister to be the Attorney General. They should remain judges until retirement.

Judges just retired also preferably ought not be appointed Attorney General, and MADPET adopts the position that there ought to be a ‘cooling off period’ of at least 3 years before appointment, to avoid the perception of ‘rewards’ for things done whilst serving as judges.

The Judges' Code of Ethics 2009, in Article 5 states that ‘…A judge shall exercise his judicial function independently on the basis of his assessment of the facts and in accordance with his understanding of the law, free from any extraneous influence, inducement, pressure, threat or interference, direct or indirect from any quarter or for any reason…’

As such, now following the said media reports, the government of Prime Minister Anwar Ibrahim must clarify matters, including whether any sitting judges were met, and offered the position of Attorney General.

We need to remove perception that the independence of these judges has been compromised by such actions/omissions of government and others. We need to restore confidence in Malaysian judges to reassure us that cases involving Ministers, politicians and even the government will always be treated independently and impartially by our judges.

Attorney General/Public Prosecutors Must Be Independent of Prime Minister or Government

In a recent Zahid Hamidi (now Deputy Prime Minister)’s Foreign Visa System (VLN) case, in deciding not to call Zahid to enter his defence and then acquitting him, the High Court judge found that the ‘prosecution failed to make out a prima facie case on all the charges’, whereby he also mentioned that key witnesses were not called, and material evidence not adduced.(Sun, 23/9/2022). Were the prosecution actions/omissions due to the Public Prosecutor, acting for the interest of the government of the day? In any event, prosecution did file an appeal in this case to the Court of Appeal, and the next case management at the Court of Appeal is fixed for 10/1/2023. (The Edge Markets, 22/11/2022)

Article 145(1) of the Federal Constitution states, that “…The Yang di-Pertuan Agong shall, on the advice of the Prime Minister, appoint a person who is qualified to be a judge of the Federal Court to be the Attorney General for the Federation…’ The King must act on the advice of the Prime Minister.

In Malaysia, the Attorney General is also the Public Prosecutor, and Public Prosecutors too need to act professionally and impartially, hence it is most important that the Attorney General (also the Public Prosecutor)’s appointment be done independently, and as such the role of the Prime Minister in the selection and appointment process need to be removed.

MADPET believes that it is better that a senior and suitable member of the AGC be appointed as the Attorney General – noting also that the appointment of others, including former or serving judges, have raised concerns in recent years about ‘selective prosecution’ and questionable use of prosecution powers in certain cases.  

Ahmad Maslan, the UMNO Secretary General’s acquittal on money laundering charges by the High Court on 29/9/2022, after he paid a compound of RM1.1 million (US$239,000) is one such case of questionable use of prosecution powers.

Expedite the removal of the Prime Minister in appointing judges

One of the measures that is currently being fought for to ensure independence of judges has been the removal of the Prime Minister’s powers in appointment, and to that end many including MADPET have been calling for the selection and appointment of judges be done by an independent body, like maybe the Judicial Appointment Commission, who can then advise the King directly. As it is, some Prime Minister may follow the recommendation of the Judicial Appointment Commission, and some may not.

Article 122B of the Constitution now states that ‘(1) The Chief Justice of the Federal Court, the President of the Court of Appeal and the Chief Judges of the High Courts and (subject to Article 122c) the other judges of the Federal Court, of the Court of Appeal and of the High Courts shall be appointed by the Yang di-Pertuan Agong, acting on the advice of the Prime Minister, after consulting the Conference of Rulers….’ This provision and similar provision that provide for the appointment of judges, on the advice of the Prime Minister must be repealed, removing the Prime Minister’s role, and replaced by an independent body, possibly a more independent Judicial Appointments Commission.

MADPET calls for the appointment of the Attorney General/Public Prosecutor and Judges be seen as independent of the Prime Minister and the government to restore the credibility of prosecution and judges, and to ensure the right to fair trials and that all persons are equal before the law and entitled to the equal protection of the law.

MADPET calls on the Prime Minister and government to do the needful to ensure that the perception of the independence of our judges and courts is strengthened.

There may also need to extend the safeguards to ensure independence to Session Court judges and Magistrates. The jurisdiction of Session Court judges has today been extended to include matters that were previously the sole discretion of High Court judges.

These judicial officers, including Session Court judges and Magistrates should all reasonably be under the Judiciary, and no longer under the Judicial and Legal Service Commission, where the Attorney General is a Commission member.

 

Charles Hector

For and on behalf of MADPET(Malaysians Against Death Penalty and Torture)

 

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Three judges being considered as attorney general

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By ZAKIAH KOYA

• Nation

• Friday, 16 Dec 2022

PETALING JAYA: One judge from the Court of Appeal and two from the High Court are being considered as replacements for Tan Sri Idrus Harun as attorney general (AG).

A government official, speaking on condition of anonymity, said Idrus had expressed his intention not to serve out the rest of his contract, which ends in March next year, if he is to be replaced by the new government.

Three names had been presented to Prime Minister Datuk Seri Anwar Ibrahim for his consideration before he advises the King on who should be appointed the next AG.

All three are judges, added the source.

“The names currently being mentioned are Datuk Ahmad Fairuz Zainol Abidin, Datuk Seri Kamaludin Md Said and Datuk Wan Ahmad Farid Wan Salleh,” said the source yesterday.

He added that the appointment will be made very soon as the Prime Minister needs to put his house in order before the new year so he can concentrate on other matters.

Idrus was reappointed as the AG for another year on March 6.

Under Article 145(1), the Yang di-Pertuan Agong shall, on the advice of the Prime Minister, appoint a person who is qualified to be a Federal Court judge to be the attorney general.

Justice Kamaludin was appointed Judicial Commissioner on Nov 1, 2012, and served at the Kuala Lumpur High Court until Sept 11, 2014.

He was then elevated as a High Court Judge and served at the Kuala Lumpur and Seremban High Court until 2018.

Justice Kamaludin was elevated as a Court of Appeal judge on April 27, 2018, and is currently in charge of judicial reviews.

Another possible candidate, Justice Ahmad Fairuz, was deputy chief executive of the Securities Commission from April 1, 2016, to March 29, 2018.

On March 30, 2018, he was appointed Judicial Commissioner and on March 25 this year, he was elevated as a High Court judge at the commercial division.

Justice Wan Ahmad Farid was in the news last June when he recused himself from hearing former prime minister Datuk Seri Najib Razak’s application to allow Queen’s Counsel (QC) Jonathan Laidlaw to represent him in his final appeal in the Federal Court in the SRC International Sdn Bhd case.

Justice Wan Ahmad Farid declared he was once an active politician and has a family member who is still active in Umno.

He was a senator back in 2008 and was deputy to then home minister Tan Sri Syed Hamid Albar. - Star, 16/12/2022

 

 

3 judges may be in running to become next AG

V Anbalagan

-

December 21, 2022 12:17 PM

(From left) Justices Zabidin Diah, Yaacob Sam and Abdul Karim Abdul Jalil are believed to be candidates for the attorney-general’s post in place of incumbent Idrus Harun.

PETALING JAYA: Three serving judges appear to be in Prime Minister Anwar Ibrahim’s consideration for appointment as the next attorney-general (AG), sources say.

They are Federal Court judge Zabidin Diah and Court of Appeal judges Yaacob Sam and Abdul Karim Abdul Jalil.

A source said the three have all the credentials to occupy the position as they have handled criminal and civil cases both as judges and also during their stint in the judicial and legal service.

“Knowledge and experience in civil and criminal laws are vital as the AG is chief legal adviser to the government.

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“The AG also doubles up as a public prosecutor as stated in the Federal Constitution and the Criminal Procedure Code.

“A highly qualified person is needed as he needs to handle high-profile criminal cases,” the source added.

The late Mohtar Abdullah, Apandi Ali and present office holder Idrus Harun also rose from the bench to be appointed AG.

Zabidin is currently the acting Chief Judge of Malaya following a vacancy which arose when Azahar Mohamed retired two months ago.

He was appointed a judicial commissioner in 2004 before becoming a High Court judge in 2006.

Zabidin was promoted to Court of Appeal judge in 2018 and elevated to sit on the Federal Court bench earlier this year.

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Yaacob and Abdul Karim are currently the top two senior Court of Appeal judges.

Yaacob was appointed a judicial commissioner in 2009 and became a High Court judge the following year.

He was also the chairman and member of the Enforcement Agency Integrity Commission (EAIC) from 2014 to 2017.

He was elevated as a Court of Appeal judge in 2017.

Abdul Karim was appointed a judicial commissioner in 2012 and made a High Court judge in 2014.

He was elevated to sit on the Court of Appeal in 2016.

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Idrus’ contract is set to expire in March.

However, FMT understands that he is prepared to leave office earlier if Anwar has identified a suitable replacement.

Article 145 (1) of the Federal Constitution states that the Yang di-Pertuan Agong shall on the advice of the prime minister appoint a person who is qualified to be a judge as AG.

Under Article 123 of the constitution, a citizen who has practised law or has been in the judicial and legal service, or a combination of both, for at least 10 years is qualified to be appointed as AG. - FMT 21/12/2022

Three key prosecution witnesses in Zahid’s case unreliable and not credible: Judge

• 23-09- 2022 04:25 PM

SHAH ALAM, 23 Sept -- Former Deputy Prime Minister Datuk Seri Dr Ahmad Zahid Hamidi (centre) recited a prayer after the High Court today acquitted him of 40 charges of corruption in relation to the Overseas Visa System (VLN). BERNAMAPIX

SHAH ALAM: The High Court today ruled that three key prosecution witnesses in Datuk Seri Ahmad Zahid Hamidi’s corruption case involving 40 counts of receiving bribes in connection with the Foreign Visa System (VLN) were unreliable and not credible.

Judge Datuk Mohd Yazid Mustafa, when reading out his more than two-hour judgment, named the witnesses as former directors of Ultra Kirana Sdn Bhd (UKSB, namely Harry Lee Vui Khiun, Wan Quoris Shah Wan Abdul Ghani and David Tan Siong Sun, who are the 15th, 16th and 17th prosecution witness (PW), respectively.

“I find that the three key witnesses called by the prosecution were not reliable and neither were they trustworthy or credible,” he said.

Judge Mohd Yazid said the court found that the notations of ‘Z’ and ‘ZH’ that appeared in UKSB’s ledger did not prove that Ahmad Zahid received the monies or gratification.

“I further find that even though there was a suggestion that the accused had received political donations amounting to RM200,000 on two occasions, there is no sufficient evidence of particulars before the court for me to come up with any amended charge,” he added.

He said Harry Lee (PW15) and Wan Quoris Shah (PW16) also agreed that there was no independent evidence to support the contention that the monies were paid to Ahmad Zahid.

“Based on all the evidence adduced by the prosecution, I observe there is no closed-circuit television (CCTV) footage produced in court, the drivers (of the key witnesses), the guards and policemen (at Ahmad Zahid’s house) were not called.

“Touch ‘n Go transaction slips or phone call logs and messages with the accused were also not produced (as evidence),” he said.

Referring to Datin Seri Rosmah Mansor’s solar case, judge Mohd Yazid said all the individuals involved in the process to deliver the money (RM5 million) to her were called as witnesses.

“However in Ahmad Zahid’s case, the witnesses involved or had knowledge of the source of funds, including Nicole (a businesswoman from Hong Kong) and two money changers were not called as witnesses to support the prosecution’s case,” he added.

Judge Mohd Yazid also said the three key witnesses testified that the monies were placed in a brown envelope on each occasion of delivery, but the prosecution did not produce any sample envelope as evidence.

“No evidence was led to show the size of the envelope used. I simply cannot imagine what envelope, in what size, could fit in the SG$600,000 in cash which is equivalent to about RM1.6 million at the material time.

“Surprisingly, David Tan (PW17), the creator of the ledger, admitted during cross-examination that the second delivery of RM3 million was by way of a luggage was an afterthought.

“This admission of an afterthought by PW17 is more than sufficient for me to find that he has zero credibility,” he added.

To further support his finding, the judge said David Tan testified that he would record the payments on the same day or the next day, but most of the ‘remark’ columns in the ledger were left blank.

“PW15 also agreed that the blank ‘remark’ columns do not show that the monies were paid to the accused. The blank ‘remark’ columns give rise to a possible inference as suggested by the defence that the monies could have been distributed among the three of them (PW15, PW16 and PW17) as they maintained a luxurious lifestyle,” the judge said.

He said each of them owned one unit of property at Pavilion, with PW16 also owning a bungalow house in Putrajaya, one semi-detached house in Cyberjaya, two Range Rovers, expensive motorcycles and pay tax amounting to millions of ringgit.

“Without strong evidential support, I simply cannot consciously make a finding that the monies were in fact received by the accused as suggested by the prosecution based on transactions recorded in the ledger as there was no record that the monies were in fact received by the accused in the ‘remark’ columns,” said the judge.

Judge Mohd Yazid said from the testimony of the three key witnesses, it was Harry Lee (PW15) who controlled and decide on the funds and made payments to various parties.

“Further, these monies were not reported to the tax authorities, never reported to the external and internal auditors of UKSB and these monies were are not reflected in audited accounts of UKSB.

“I find that there is sufficient evidence to show that criminal offences have been committed. Based on ledger (UKSB), the monies received from Sept 2004 until Aug 2018 was about RM238,356,966,” he said.

Judge Mohd Yazid said the court found that the prosecution failed to make out a prima facie case on all the charges when they failed to prove the foremost important element against Ahmad Zahid, which is the receipt of the corrupt monies.

“Based on the foregoing reasons and analysis of the evidence and the law, I hereby acquit and discharge the accused from all charges without calling for his defence as the prosecution has failed to made out a prima facie case,“ he added.

However, on the issue of political donation, the judge said the defence failed to lead evidence to suggest that the political donation of RM200,000 was spent for political purposes.

On the issue of unfair trial and selective prosecution raised by the defence, he said the matters did not arise at all in the case.

“I myself certainly have refrained from day one to be swayed or influenced by any comments made outside of this courtroom. It was my solemn duty to uphold justice without favour and fear or prejudice,“ he added.

He expressed his appreciation to both parties for their professionalism in conducting the trial, enabling the proceedings to run smoothly without any vexatious and frivolous interlocutory applications.

After the judge finished reading out the more than 100-page judgement, Ahmad Zahid, clad in white baju Melayu and black pants shouted ‘Allahu Akbar’, followed by applause by family members and supporters.

Ahmad Zahid had pleaded not guilty to 33 charges of receiving bribes amounting to SG$13.56 million from Ultra Kirana Sdn Bhd for himself as Home Minister to extend the contract of the company as the operator of a one-stop centre (OSC) service in China and the VLN system, as well as to maintain its contract with the Home Ministry to supply the VLN integrated system.

On the other seven charges, he was alleged to have obtained for himself cash of SG$1,150,000; RM3.125 million; 15,000 Swiss Franc; and US$15,000 from the same company, which he knew had a connection with his official functions.

He was charged with committing all the offences at Seri Satria, Precinct 16, Putrajaya and Country Heights, Kajang, between Oct 2014 and March 2018. - Bernama, Sun Daily, 23/9/2022

 145  Attorney General

(1) The Yang di-Pertuan Agong shall, on the advice of the Prime Minister, appoint a person who is qualified to be a judge of the Federal Court to be the Attorney General for the Federation.

123  Qualifications of judges of Federal Court, Court of Appeal and of High Courts 

A person is qualified for appointment under Article 122B as a judge of the Federal Court, as a judge of the Court of Appeal or as a judge of any of the High Courts if -

(a) he is a citizen; and

(b) for the ten years preceding his appointment he has been an advocate of those courts or any of them or a member of the judicial and legal service of the Federation or of the legal service of a State, or sometimes one and sometimes another.