Save the judiciary now – Part I

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Judicial review of laws is the most important legal weapon in the hands of the Judges to
rectify the mistakes committed by the Executive. This power has been
taken away from the Judges. It should be re-instated, asserts
Mohd Ali.

Allahyarrham Tun Dr Mohd Suffian in his book ‘Introduction to the Constitution of Malaysia’  (1976, page 129) wrote:

    “Judicial and Legal Service Commission

    This Commission has jurisdiction over all members of the Judicial and Legal Services.

    The Commission consists of:
    1.    the chairman of the Public Service Commission as chairman.
    2.    the Attorney-General
    3.    one or more other members appointed by the Yang di-Pertuan Agong, after consulting with the Lord President (now Chief Justice) from among persons who are or have been a judge of the Federal Court or a High Court or before Malaysia Day if … Today (i.e.1978) five judges are members.

The Judicial and Legal Service Commission was first established in 1957 but was abolished in 1960. In its original form, it consisted of the Chief Justice as chairman, the Attorney-General, the senior puisne judge, the deputy chairman of the PSC and one or more other persons, appointed by the Yang di Pertuan Agong, after consultation with the Chief Justice from among judges or former judges of the Supreme Court.

    To ensure the impartial and fair treatment of members of the public service, the commissions are established for their appointment, promotion and discipline.”

The abolition of this Commission has resulted in the current messy situation in which Malaysia is in today. In my view, the Commission should be re-established so that it will be responsible for the appointment, promotion and discipline of Judges and others. This Commission will have jurisdiction over all members of the Judicial and Legal Services as was the situation in 1957.

 

Prime Ministers of Malaysia

Malaysia was fortunate since Independence in that we had three Prime Ministers who were all learned in the law; they knew the Rule of Law, Constitutional Law and Justice – they had respect for them; whereas the fourth Prime Minister was a medically qualified man who had little to do with law, justice and the rule of law. In Mahathir’s own words: “Hang the Judges and the Lawyers!” That was his motto.

From this, we can deduce the type of man Mahathir is. Therefore, the darkest period in Malaysian judicial and legal history was between 1981 and 2003 during which time Malaysians suffered very heavy blows from the Law and Justice point of view. Mahathir had no knowledge of the law – its depth and width; he went on his own path and destroyed the Rule of Law and the Judiciary in Malaysia.

The Judiciary – the Original Articles 121–131 of the Federal Constitution

1.    Articles 121–131 deal with the Judiciary and its powers. I reproduce below the original version i.e. the 1957 version of Articles 121-131 The current Articles have been heavily amended, deleted or mutilated.

2.    Due to his ignorance of the Law, Mahathir has been amending the Federal Constitution to suit the whims and fancies of his party.  The Federal Constitution has been amended 50 times in the last 50 momentous years, out of which 12 amendments were relating to Articles 121-131 of  the judiciary.

    Judicial power
   
    Broadly defined, ‘Judicial Power’ is ‘the power which every sovereign authority must of necessity have to decide controversies between its subjects or between itself and its subjects’ see Huddart Parker Pty Ltd v Moorehead (1908-1909) 8 CLR. In Malaysia, prior to amendments, Article 121 of the Federal Constitution read:

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    ‘Subject to clause (2) the judicial power of the Federation shall be vested in two High Courts of co-ordinate jurisdiction and status … and such inferior courts as may be provided by the federal law’.

    The amended Article 121 (1) now reads:


    There shall be two High Courts of co-ordinate jurisdiction and status … and such inferior courts as may be provided by the federal law; and the High Courts and inferior courts shall have such jurisdiction and powers as may be conferred by federal law.



In his Foreword to the Book ‘May Day for Justice’ the Rt Hon’ble Justice Michael Kirby CMG (Commissioner of the International Commission of Jurists and President of the Court of Appeal of New South Wales) wrote:

    “Strong tradition – high standards”

    The Malaysian judiciary is the proud inheritor of the mantle of eight centuries of British justice. This fact was symbolised on Malaysia Day, when Sir James Thomson, Chief Justice, became the first Lord President of Malaysia and a Tun. The Judges are successors to a strong tradition of impartiality, incorruptibility, efficiency, independence and intellectual ability. These are testing standards.

    Judicial independence and integrity are all too often taken for granted. There are times when we – who are the successors to the constitutional settlement which protected the judges of England – assumed that we were immune from the real threat. We thought that challenge to independence of the Judiciary were confined to other less happy lands; heirs to other cultural and legal institutions…

    The need for courageous judges of principle

    We should not really be surprised when such challenges come. Even within the British tradition, judges of earlier times had to take risks in upholding the Rule of Law and their Independence. In the days of the autocratic monarchs, up to the Stuarts (and of the coterie of advisors up to the Stuarts), the will of the sovereign frequently overbore the judges who were simply seen as part of the sovereign’s bureaucracy. When Sir Edward Coke asserted before James that the King was under God and the Law, it is noteworthy that he did so trembling in his knees. In those times such a bold notion indeed.”


Judicial review

This is the most important legal weapon in the hands of the Judges to rectify the mistakes committed by the Executive. This power has been taken away from the Judges. It should be re-instated. Nowadays, many Acts contains a provision which forbids the matter being inquired into by a court of law. A member of the ruling party, that is the Minister, is empowered to prevent the matter being brought to the Court’s review. It is wrong in Justice. In most of the Commonwealth countries, this is not permissible.

Justice Mahadev Shanker has stated his views recently  in Aliran Monthly, Vol 27 (9), pages 28-29 as follows:


    “Why the immunity for Ministers?

    Our Constitution contains an article that the prerogative powers of our Rulers are sacrosanct. That law was amended so that our Sovereigns can be sued in the Constitutional Court.



    I find it very hard to reconcile myself to the numerous statutes which now provide that the “the decision of the Minister shall not be questioned in a Court of Law”. The ISA is only one of them. You can find similar provisions in the Industrial Relations Act and, of late, even in the Private Health Care Facilities and Service Act 1998, (Act 586) which came into force on May 31 2006.




    Has the immunity – or the impunity – thus conferred led us astray, especially when some Judges seem to have been contaminated with the same syndrome? The views I have expressed here … are my own and I take personal responsibility for them.”

 

 Corruption in the Judiciary – United Kingdom


Lord Alfred Denning in his book ‘Landmarks in the Law’ (Butterworth, 1984, pg 46) wrote:

    “4. A Committee of Inquiry




    Charged with corruption


    Those two complaints led the House of Commons to set up a committee to inquire into abuse in the Court of Justice. They made a report on 15 March 1620:




    1.    The Persons against whom it is alleged, is no less than the Lord Chancellor. (Francis Lord Verulam, Viscount St Albans], a man who endured with all parts, both of nature and art as that I will say no more of him; being not able to say enough.


    2.    The Matter alleged is Corruption.


    3.    The Persons by whom this is presented to us, are two viz. Awbrey and Egerton…




    A written confession


    All these complaints were reported by the Commons to the Lords, together with supporting evidence. The Lords appointed a Select Committee of their House who examined witnesses. They formulated 28 separate Articles of Charge against the Lord Chancellor, each charging a separate bribery and corruption. The Lords invited the Lord Chancellor to appear before them to answer the charge. But he never appeared. He said he was sick. He wanted to take exception to the witnesses, and so forth. But at length on Monday, 30 April 1620, he sent this written confession:




    ‘To the right honourable the Lords Spiritual and Temporal, in the High Court of Parliament assembled:




    The humble Confession and Submission of Me the Lord Chancellor.




    Upon advised consideration of the Charge, descending into my own conscience, and calling my memory to account so far as I am able, I do plainly and ingenuously confess, that I am guilty of Corruption, and do renounce all Defences, and put myself upon the grace and mercy of your lordships…’




    v. Latimer’s condemnation




    Long before Bacon’s time, judges had been taking bribes. Seventy years before, it had been condemned by the brave old Bishop Hugh Latimer:




    ‘They all love bribes. Bribery is a princely kind of thieving. They will be waged by the rich, either to give sentence against the poor, or to put off the poor man’s cause. This is the noble thief of princes and magistrates. They are the bribe-takers. Nowadays they call them by their name – bribes.-  1 (1620) State Trials p 1114.’”



Malaysian Judiciary

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Not a day passes when the rakyat don’t read in the mass media that the judiciary is corrupt, the police are corrupt, the customs officers are corrupt, the JPJ is corrupt and, in fact, that almost all strata of the Public Service is corrupt!


Judges and other public servants seeking appointment after retirement

We have a new trend now in that for the past 10 years, influential judges, public officers and police officers have, on retirement, been seeking appointment with powerful corporations. These public officers are still receiving their government pensions. If they wanted to, they could carry out some social work or even act as legal consultants as some judges are doing; that is acceptable. But it is unethical for them to accept appointments with powerful corporations who have business links with government. There are number of ongoing cases e.g. the former IGP is now Advisor to Genting Group, and a number of  former judges, including Eusoff Chin, are directors in leading corporations.

This is a very dangerous trend and should be stopped by enacting a law prohibiting Judges from becoming directors or consultants with corporations. This can lead to corruption because the judges who retire still have  connections with their former subordinates whom they can influence for the Corporation. It is rumoured that these former public servants are getting salaries ranging from $30,000 to $50,000 a month while the ordinary workers are asking for a monthly minimum wage of $900 – which the government has not fixed yet.

  Quote from Inter Press Service“ Hearing exposes Mahathir, his corrupt times (22 January 2008)”:

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    “Lawyers have long demanded an overhaul, saying the judiciary was deeply corrupt and under the thumbs of well-connected businessmen and politicians. But their efforts were fruitless until the clip [Lingam video clip] turned up, giving them the hard evidence they had long sought.


    ‘The outcome of the inquiry aside, the probe is giving Malaysians a rare glimpse into the sinister aspects of the government at the very highest levels,’ said human rights lawyer Sivarasah Rasiah, who was the first to view the secretly shot clip along with an aide to Anwar.




    ‘The revelations are truly shocking and show how deeply tainted our judiciary has become,’ he told IPS on the sidelines of the inquiry that is being held at the Kuala Lumpur Court Complex. ‘Anwar has done a superb job in forcing the government to hold the inquiry,’ he said. ‘What we are concerned now is for the inquiry to lead to a major cleanup of the judiciary.’




    Shocking details the public has heard since the clip surfaced include lawyers sending bags, presumably filled with cash, to judges’ homes in the dead of the night. Other presents included expensive hand phones for judges and expensive handbags for their wives. In one case a lawyer involved in a case actually wrote the judgment for a judge, indicating how close their relationship was and the total lack of respect, judicial integrity and independence.




    Like Eusoff Chin, Mahathir also frequently answered “could not remember” to many questions aimed at discovering the business-politician-judges nexus that lawyers say has tarnished the country’s once famed and respected judiciary.




    For Mahathir, who never had to face a parliamentary select committee or a public inquiry in his 22 years (1981-2003) as head of the government, last week’s questioning was a let down. Public anger rose at Mahathir’s stock ‘I don’t know, I can’t remember’ replies to the questions. At one point, asked why he dropped some judges recommended for promotion by the then Chief Justice who was highly respected by his peers, Mahathir said: ‘I don’t have to answer.’”



He misused the rakyat’s money but need not answer. But he has to answer to Allah for his misdeeds.

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