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)

No comments: