JUDICIAL INDEPENDENCE IN MALAYSIA

AHMAD AMIR

AZFAR

AHMAD HANIS AFIQ

AHMAD FAREZ

WHAT WILL WE TELL YOU……

Mysteries Behind The People Who Wear Curly White Wigs and Extremely Huge Long Robes.

Judicial Independence?

The 1988 Constitutional Crisis – That Old Man Got Sacked Pretty Bad Really

Why After This You Should Really Care If Those People at The Palace of Justice Don’t Really Care About The Law, Seriously.

THE MYSTERIES?

THE SYSTEM IN MALAYSIA: WHO’S ON THE BENCH?

PURPOSE & POWERS: YOU

CHECK, I CHECK YOU BACK!

HISTORY OF THE COURTS

THE JUDICIARY

IT CAN BE DEFINED AS;

“A system of courts of law for the administration of justice ”

“A judicial tribunal established to administer justice. It hears and

settles disputes between conflicting parties and handles the questions of law arises from

it”

RIDING THE TIME MACHINE…… The first court in Malaya was established by a charter in 1807

known as the First Charter of Justice, where the British East India Company obtained the right from the British Crown to establish a Permanent Court of Judicature of The Prince of Wales in Penang.

In 1787, the United States Constitution establishes the Supreme Court of the US as part of the federal branch;

“The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to

time ordain and establish.” - ARTICLE III

As early in 1066, Curia Regis or the King’s Court, consisted of tenants-in-chief and ecclesiastics heard cases from the people with the King, forming the Coram Rege (later developed into the Court of King’s Bench). In 1178 as judicial workload grew, all common pleas were moved to a separate court – called Court of Common Pleas. In 1215, King John of England signed the Magna Carta, establishing that Common Pleas shall not follow the King.

ROLES OF THE COURT

To hear and determine both

criminal and civil matters

To interpret the Federal Constitution and State Constitutions

To interpret statutory laws passed by Parliament or State Legislatures

To declare any laws or government actions as null and void (inconsistent with Federal Constitution)

WHAT DID MONTESQUIEU DREAMED ABOUT?

Under the Doctrine of Separation of Powers, there shall be a court

to interpret laws of the land and check the

powers of the Legislature together with the Executive to

prevent abuse of power.

THE SYSTEM IN MALAYSIA The Federal Court consists of a president styled as the Chief Justice

(formerly called the Lord President), the President of the Court of Appeal, the two Chief Judges of the High Courts in Malaya and Sabah and Sarawak (formerly called Chief Justices) and presently four Federal Court judges.

There are presently 8 Court of Appeal Judges excluding the President of the Court of Appeal. There are 48 Judges (including Judicial Commissioners) for the High Court in Malaya and a further 7 Judges (including Judicial Commissioners) for the High Court in Sabah and Sarawak.

At the Subordinate Court level, there are 60 Sessions Court Judges of which 52 are in Peninsular Malaysia and 4 each in Sabah and Sarawak. At the Magistrate Court level, 151 posts have been approved (122 posts in Peninsular Malaysia, 10 posts in Sabah, 1 post in Labuan and 18 posts in Sarawak) of which 138 posts have been filled and presently there are 118 magistrates in Peninsular Malaysia, 7 magistrates in Sabah, 1 magistrate in Labuan and 12 magistrates in Sarawak.

WHO'S WHO ON THE BENCH? Here are the list of past Lord Presidents and Chief Justices of

Malaysia:

Tun Sir James Beveridge Thomson 1963 - 1966 Tun Syed Sheh Hassan Barakbah (1906 - 1975) 1966 - 1968 Tun Mohamed Azmi Mohamed (1909 - 1996) 1968-1974 Tun Mohamed Suffian Mohamed Hashim (1917 - 2000) 1974 - 1982 Raja Tun Azlan Shah (later Sultan of Perak and Yang di-Pertuan Agong

of Malaysia) (1928 - ) 1982 - 1984 Tun Mohamed Salleh Abas 1984 - 1988 Tun Abdul Hamid Omar 1988 - 1994 Tun Abdul Hamid Omar (1994, previously Lord President) Mohamed Eusoff Chin (1994 – 2000) Mohamed Dzaiddin Abdullah (2000 – 2003) Ahmad Fairuz Abdul Halim (2003 – 2007) Abdul Hamid Mohamad (2007 - 2008) Zaki Tun Azmi (2008 - present)

CHIEF JUSTICE OF THE FEDERAL COURT

The Right Honourable Tun Dato' Seri Zaki bin Tun Azmi

PRESIDENT OF COURT OF APPEAL

The Right Honourable Tan Sri Dato' Seri Alauddin bin Dato'

Mohd. Sheriff

CHIEF JUDGE OF HIGH COURT IN MALAYA

The Right Honourable Tan Sri Arifin bin Zakaria

CHIEF JUDGE OF HIGH COURT IN SABAH & SARAWAK

The Right Honourable Tan Sri Datuk Seri Panglima Richard

Malanjum

JUDICIAL INDEPENDENCE?!

WHAT’S UP WITH THE JUDGE NEXT DOOR?

LAYING DOWN THE LAW FOR THE

JUDGESJUDICIAL

INDEPENDENCE: CONSTITUTIONAL

ANALYSISTHE

JUDGE

SO WHAT IS IT?

“A judge should be free of any pressure from the government or anyone else as to how to decide any particular case” Sir Browne-

Wilkinson“The exercise of judicial functions without interference and influence from the executive or legislature,

private and partisan groups”

WHAT REALLY OUR CONSTITUTION SAY?

The Federal Constitution contains express provisions to secure independence, either from the control or interference by the executive or the legislature:

a) the procedure for the removal of superior judges, Art 125(3);

“If the PM or the CJ after consulting the PM represents to the YDPA that a judge of the federal court ought to be removed on the ground of any breach of any provisions of the codes of ethics prescribed under clause (3B) or in the ground of inability from infirmity of body or mind or any other caused properly to discharge the functions of his office, the YDPA shall appoint a tribunal in accordance with (4) and refer the representation to it : and may on the recommendation of the tribunal remove the judge from office. ”

b)guarantees on the judges’ remuneration and terms of office, Art 125(7)

“The remuneration and other terms of office (including pension rights) of a judge of a federal court shall not be altered to his disadvantage after his appointment”

c) prohibition on public discussion on judges’ conducts, Art 127

“The conduct of a judge of the Federal Court, The Court Of Appeal, or a High Court shall not be discussed in either house of parliament except on a substantive motion of which notice has been given by not less than one quarter of the total number of members of that house and shall not be discussed in the legislative assembly of any state.”

d) power of the judges to punish contempt of court, Art 126

“The Federal Court, The Court of Appeal, or a High Court shall have the power to punish any contempt of itself.”

JUDGING THE JUDGES

The Judges’ Code of Ethics 2008

Judges’ Ethics Committee Bill 2008

Judicial Appointments Commission Act 2008

COMPARING WITH YOUR NEIGHBOUR…

US Supreme Court&

Judiciary in the United Kingdom

HOW THAT OLD MAN GOT SACKED PRETTY BADLY...

Its all started on 24 April 1987 when Dr. Mahathir won the election…

Subsequently, the losers (team B) began to find faults within the election system because they cannot accept the defeat.

They sought to annul the elections based on unregistered UMNO branches and therefore hoping the courts would declare that the elections were null and void and have no effect.

On 4th February 1988, the judge Dato Harun Hashim declared that UMNO itself is an unlawful society, due to some branches were not registered.

Dr Mahathir made scathing attacks towards the judiciary by declaring them to be too fiercely independent up to a point of willing to jeopardize the security of the nation.

Judges began to feel uneasy by the attacks from the legislative branch of the government as they accused the judges as wanting to be above criticisms.

Hence, a complaint letter, an idea from Tun Salleh Abbas, was drafted and signed by 20 judges to be sent to the then Agong on 25th March 1988.

Two days before the commencement of the tribunal, the other rulers met Tun Salleh Abas and they were willing to forgive him for the breach of protocol in the said letter. But to his utter dismay, the Agong was adamant in his decision to suspend him.

In the mean time, Tun Hamid Omar who complained to the Prime Minister had led to the setting up of another tribunal, chaired again by Tun Hamid Omar to suspend all five Supreme Court judges.

In the end, together with Tun Salleh Abas, Datuk George Seah and Tan Sri Wan Sulaiman were removed from office.

Then, Tun Salleh Abbas` was suspended on the 26th May 1988 and was eventually charged on 4 counts of improper conduct and misbehavior unbecoming of a Lord President.

Among others, were the distribution of letters to all rulers dated 25th March 1988 which the Agong took exception. This date would be the point of reference for all the subsequent events that will flow through. In other words, the conspirators used this letter to tarnish the Lord President’s good name.

Later, a tribunal was duly set up, headed by Tun Hamid Omar himself as the Acting Lord President at that time.

This sad episode actually illustrates the huge chasm of the interpretation of the law between 2 branches of the government.

Tun Salleh Abbas was backstabbed by his own junior, Tun Hamid Omar who heads the conspiration along with a few more judges.

Tun Salleh Abas stressed that Tun Hamid Omar tried to undermine his appointment as Lord President in 1984 and repeatedly made unilateral decisions during his tenure as Acting Lord President in 1988.

“although the Prime Minister at that time was deemed responsible for bringing down the judiciary, the judiciary itself could not have been brought down without the help of its own self. But there were also desperate judges then who had no qualms about stabbing a friend in his back in order for their own dreams to be fulfilled”

This dark history remarks that if the judges themselves lack of integrity and courage to defend the constitution and its ideals, they will not be able to maintain the independence of judiciary.

SO WHAT NOW?

DO YOU STILL

BELIEVE IN THE

JUDICIARY?

CAN YOU REALLY

TRUST YOUR JUDGES?

HEARD OF VK LINGAM?

ITU BUKAN SAYALAH DEI!

Fiat justitia ruat caelum

Do Justice, Let The Sky Fall

“…..to ensure the two essentials of The Rule of

Law, The Independence of The Bar, and The

Independence of The Judiciary.” TUN SUFFIAN