Last week, when making his controversial, ill-advised and ill-considered comment likening the proposal for an independent judicial commission on appointment and promotion of judges as akin to nudity rather than transparency, the Chief Justice Tun Ahmad Fairuz Sheikh Abdul Halim claimed that he was both an advocate and practitioner of judicial accountability and transparency.
Ahmad Fairuz said: “I started (as the Chief Justice) in 2003 with accountability and integrity. We have been transparent.”
I have three questions for Ahmad Fairuz concerning accountability and integrity of the Chief Justice.
Firstly, will the Altantunya Shaariibuu murder trial set for hearing in March 2008 be brought forward in line with the maxim that “justice delayed is justice denied” as well as his earlier statement that the March 2008 trial date is “too far off”?
The Star in a front-page headline of 6th January 2007 “March 7, 2008: Altantunya murder trial — TOO LONG A WAIT” quoted the Chief Justice:
“The date is too far off. But we are appointing 16 new judges. Hopefully the trial can be brought forward.”
Secondly, what has happened to his public undertaking on his appointment as Chief Justice some four years ago in 2003 to recast the Judges’ Code of Ethics to restore public confidence in judicial independence, impartiality and integrity.
The Judges’ Code of Ethics was promulgated in 1994 to establish standards for ethical conduct of judges and enhance public confidence in an independent, fair and competent judiciary to deliver justice to all Malaysians, but the chief wrecker of the 1994 Judges’ Code of Ethics was none other than its author, the then Chief Justice, Tun Eusoff Chin, who violated and discredited the Code of Ethics by his own judicial misconduct and impropriety, to the extent that he left the high judicial office in disgrace.
When he became Chief Justice, Ahmad Fairuz committed himself to recast the Judges’ Code of Ethics but nothing has been heard about it although almost four years have passed.
I had in May 2003 called on the Chief Justice to initiate a nation-wide debate as to why the Judges’ Code of Ethics had failed in the previous nine years to enhance public confidence in the independence, fairness and competence of the system of justice in Malaysia and how it could be revamped.
In keeping with the principle of public accountability of the judiciary, I had also asked that Malaysians be told as to how the Code of Ethics had worked or failed to work in the previous nine years, how many complaints had been received each year under the Code of Ethics, the number of judges who had been investigated and the outcome of such investigations.
I had stressed that the recasting of the Judges’ Code of Ethics must deal with its three major defects:
- Absence of satisfactory and accountable mechanism for public complaints of breaches of the Judges’ Code of Ethics;
- The Code of Ethics had not been satisfactorily formulated so as to deal in a more comprehensive manner with all instances of judicial improprieties and misconduct as illustrated by the many judicial controversies and scandals; and
- How breaches against the Judges’ Code of Ethics could be invoked against the Chief Justice himself.
Has the Chief Justice reneged on his commitment to recast the Judges’ Code of Ethics to fully restore public confidence in the independence, impartiality and integrity of the judiciary?
Thirdly, why the post of Chief Judge of Malaya had not been filled for nearly two months since the retirement of Tan Sri Siti Normah on 5th January 2007.
The excuse that it will take some time to fill the position of the Chief Judge of Malaya because the name of the candidate had to be forwarded to the Prime Minister who would advise the Conference of Rulers on the appointment and that the Conference only meet once in three months is completely unacceptable, as it is known at least six months in advance when the position would definitely fall vacant — when Siti Normah was given a six-month extension (which cannot be further extended) when she turned 66 on July 6 last year.
It reflects poorly on the efficiency and professionalism of the Chief Justice that he cannot ensure a smooth transition for high judicial appointments so that a new Chief Judge of Malaya was able to take over from Siti Normah on her retirement on 5th January 2007.
At present, Ahmad Fairuz is the Acting Chief Judge of Malaya. Is this proper and even constitutional? Will Malaysia one day have a Chief Justice who even trebles up as Acting President of the Court of Appeal as well as Chief Judge of Malaya?
#1 by ENDANGERED HORNBILL on Tuesday, 27 February 2007 - 8:50 am
Good grief, even the CJ is half-past-six!!!
#2 by undergrad2 on Tuesday, 27 February 2007 - 9:05 am
“Firstly, will the Altantunya Shaariibuu murder trial set for hearing in March 2008 be brought forward in line with the maxim that “justice delayed is justice denied†as well as his earlier statement that the March 2008 trial date is “too far offâ€Â? Kit
I do not think a court hearing one year from now for that case is “too far off” – certainly not a case of “justice delayed justice denied”.
There are many remand prisoners who are waiting to be charged, who do not have a clue as to why they are being detained, without the benefit of counsel, indigent and unrepresented – who are all but forgotten. This is a clear case of justice delayed is justice denied.
Then there are some 10,000 plus prisoners waiting for their trials and who are likely to be freed for time served when their trials end. This is a clear case of justice delayed is justice denied.
#3 by Libra2 on Tuesday, 27 February 2007 - 9:18 am
There is this culture in Malaysia where lofty and glorifying announcements and promises are made of impending improvements, innovations etc etc.
Then nothing happens. It’s conveniently forgotten.
The govenrment hopes that the people would have forgotten about the promises and hides its “head in the sand”.
Fortunately, Kit has the habit of filing newspaper clippings, so it is difficult to fool him.
#4 by undergrad2 on Tuesday, 27 February 2007 - 9:19 am
One way to ensure that justice delayed is not justice denied is to grant bails for all bailable offences. Bails should not be set too high so as to defeat the purpose why bails are set. In murder cases though, careful consideration must be given to the question of bail as there is always a flight risk. In the U.S. murder cases have bails set at USDLS 1.0 million or more. Bails are seldom denied. But since most accused of major crimes could not afford such bails, it is as if bails have been denied.
#5 by ENDANGERED HORNBILL on Tuesday, 27 February 2007 - 9:36 am
Undergrad2, I beg to differ.
Sure, I accept that all men are equal; so all prisoners are equal and deserve equal treatment. That is undisputed and mundane.
However, there are compelling reasons why the Altantuya case deserves special consideration and speedy disposition:
1) A matter of urgent public importance – a first case involving the Police using military explosives to blow up a beautiful foreign girl.
2) A foreign national blown up on Malaysian soil by Malaysian police (shudder!) has ramifications for national image and international diplomacy.
3) The political ramifications are immensely serious; what could possibly spill from the trial – bribery, sex, political power and struggles going all the way to the highest levels of Malaysian politics. The court must allow these to unfold in the natural course of trial.
4) The fact that the General Elections is so near means that public policy dictates that the Malaysian public should know the truth before we vote for some of those who might be implicated especially since the wife of one of the accused said: ‘He has no ambitions to be the PM?” A cryptic remark which may have relevance at the trial.
5) THe backlog of 10,000 other cases may be due to incomplete investigation papers (IP) etc. If the IP for this case is ready, there is no need to wait for the disposal of the 10,000 other cases. Putting this case on the back burner may cause the flames to die out when the flicker that it is now may spark a bonfire that will help rid the nation of its pests and pollutants.
There must be more. Undergrad 2, can you please correct me and help me fill up the rest. I just think this case merits the priority it so urgently deserves.
#6 by raven77 on Tuesday, 27 February 2007 - 9:46 am
Essentially the outcome of the Mongolian trial will determine this gets to stay or go….which is why it needs to be heard early. Nothing much to do with Baginda and co anymore….
#7 by raven77 on Tuesday, 27 February 2007 - 9:47 am
Essentially the outcome of the Mongolian trial will determine this government gets to stay or go….which is why it needs to be heard early. Nothing much to do with Baginda and co anymore….
#8 by greenacre on Tuesday, 27 February 2007 - 10:12 am
For the benefit of all there are three types of bail provision in Malaysian criminal trial system. First there is bailable offence which means court or a judge has to give bail no two way about this, secondly non bailable although the term seems as though cannot but certain criteria like age, health and so on based, thus the judge may grant…as in Baginda case earlier..Thirdly called Unbailable offences which means no bail granted till kingdom come..cases on drug, armed (gun) offences.
#9 by undergrad2 on Tuesday, 27 February 2007 - 11:56 am
Hornbill: “If the IP for this case is ready, there is no need to wait for the disposal of the 10,000 other cases. Putting this case on the back burner may cause the flames to die…”
Police investigation may have been completed but it is just only the beginning. The case then enters a crucial stage when the head of the Prosecution Unit of the AG’s Chamber will have to make up his mind on a myriad of issues – including the multiplicity of charges, whether to have a joint or separate trial for each of the accused etc.
Remember that prosecutors only have one bite at the apple. Imagine the accused walking free for lack of evidence or procedural defects. Is he to be re-arrested the moment he leaves court? Can he be tried twice? Short of a mistrial, that’s double jeopardy – which is a procedural defense. Imagine the waste in terms of time and resources. The tax payers are the ones paying for it.
If the prosecution were to win at trial, there is still the possibility of an appeal if there are issues of procedure and evidence if not substantive law. It is important that the prosecution does not provide the grounds for an appeal. Why do you think we see counsel jumping to their feet and objecting at every chance they have? They are preserving the right of the accused to an appeal later on!
In the U.S. there is a statute of limitation for the crimes of murder and rape. It is unfair for someone to have to wait for as long as seven or more years to clear his or her name. In Malaysia there is no statute of limitations for criminal prosecution. Evidence deteriorates over time and memories of witnesses tend to fade away. Witnesses themselves may die or go missing or leave their jurisdiction.
What all this means is that prosecution will have to scrutinize the case carefully, weigh the evidence and avoid making procedural flaws which could only add to the time it takes from the time the accused is charged and to the time when he is pronounced guilty of the crime he is charged with.
One year is not long.
#10 by DarkHorse on Tuesday, 27 February 2007 - 12:04 pm
It’s a good thing Malaysia does not have trial by jury. This guy has been tried by the media and found guilty.
#11 by ahkok1982 on Tuesday, 27 February 2007 - 1:02 pm
Seems like nothing in Bodoh-land works…
Gov dont work
Judges dont work
Civil servants dont work
Voters’ brains dont work by repeated voting for bn.
what is next?
#12 by k1980 on Tuesday, 27 February 2007 - 2:57 pm
The reason the Altantunya Shaariibuu murder trial was first set for hearing in March 2008 was to ensure that the public, not only in malaysia and mongolia, but also throughout the world, would had forgotten the circumstances leading to the murder of the above. The longer the delay, the better it would have been for all those linked to the murder. If I were the accused, I would pray for the case to be heard in 2018 or better still, 2028.
#13 by undergrad2 on Tuesday, 27 February 2007 - 8:09 pm
In a jurisdiction like that of the U.S. where transparency is highest, the trial proper of a case like this would be slightly under one year – perhaps 6-9 months, at best.
We must not forget there is the housekeeping part of the case, the pre-trial phase where motion after motion is filed before the case sets down for trial. All these take place quietly in the background without much public interest. When a case is ready for trial, it is in its last stage, and this is the stage when the print media steps up to increase its own circulation.
As for the problem of memories fading, as Hornbill raised, memories could me ‘refreshed’ (and I use this word in a technical term) in court by witness statements given to police, by contemporaneous records of the police investigating the crime should the police officer forget etc. There are ways of refreshing the memory that would ensure that heresay evidence is kept out.
But one year or two is not a long enough period for memories to fade.
Certain witnesses may come to court insisting they do not remember and, therefore, are unable to respond to certain questions by counsel. There are ways of dealing with uncooperative or less than truthful witnesses through cross-examination. I assure you that in the hands of an experienced attorney, such witnesses would fall apart just as quickly.
#14 by ENDANGERED HORNBILL on Wednesday, 28 February 2007 - 12:29 am
Finally, the question boils down to 2 words: independence and integrity.
Do we have faith that our judiciary is independent and incorruptible?
Thinking about this question gives me yet another splitting headache. THe track record is so murky out there.
#15 by undergrad2 on Wednesday, 28 February 2007 - 6:27 am
Well, Hornbill, when you write Malaysian judiciary, you should not have words like ‘independence’ and ‘integrity’ in the same sentence. Otherwise you’ll suffer from a split personality. We don’t want that.
#16 by Jeffrey on Wednesday, 28 February 2007 - 8:31 am
I have no problem with The Judges’ Code of Ethics to buttress the judicial institution but I don’t fret if Chief Justice, Ahmad Fairuz who committed himself to recast it has yet done nothing after almost four years.
This is because a Code, no matter how well crafted, is at best as good as the person in authority who interprets its words. And words are by nature frail : they cannot do good if those who interpret them intend bad.
Why should we need a Code to regulate judges when persons appointed as judges ought, from the very nature of their qualification and experience necessary for appointment, to know what is proper or improper for a judge to behave?
If judges appointed don’t know how to distinguish between proper or improper, then the problem is not with the judges but faulty lies with the person appointing them! We should have a Code of Appointment for regulation of the latter than the judges – which is why I support the Independent Judicial Commission more urgently than I would, the Judges’ Code of Ethics!
The ethics of a judge is well embedded in legal tradition, and for so long as one appoint a judge from the rank of senior legal practitioners it is hard to imagine how the judge won’t know what is or is not proper judicial ethics.
Even many of us laymen will have inkling of what ought to be the judge’s proper qualifications, behaviour and temperament and temper of mind .
Let me summarise:
1. For qualification : obviously qualification in law and experience in its workings.
2. For behaviour : To judge one must be fair – and seen fair. He must not and cannot show bias by being an advocate for anyone – be he the Prime Minister or a patron who has offered him a holiday in New Zealand free of costs. He must for example not fraternize with a section of lawyers to make the wider group feel that he may adjudicate bias in court when hearing an argument from his ‘crony’. He must always be an advocate for the Rule of Law and its application without fear or favour. He must do justice. But what is justice? Great philosophers going back to the time of Socrates have pondered on this question and have failed to reduce it to words. Justice is what the common man in the community can feel in his heart. Again what is a common man is a difficult question but again the ordinary persons will also know who to exclude from their ranks – the religious fanatic, the racist, the schizophrenic, the emotionally and intellectually marginalized and the one afflicted with personality disorders!
3. For temperament and temper of mind : In temperament he should be “cool†and not be ruffled unnecessarily to throw tantrums in court merely because of incompetent or inexperienced lawyers, prosecutors or witnesses. He must maintain judicial decorum, some of the more dramatic examples being to utter swear words, ogle at attractive female witnesses etc.
Temper of mind would be one sharing a lot of same ground as a good lawyer – an amalgam of the intellectual ability to analyse, distinguish relevant from irrelevant, emotional feelings and bias from factual evidence, a sense of the jugular in what is important upon which a person’s case or position will stand or fall! Also prerequisite is a passion for the law, to read extensively on legal cases and statutes, whilst he is at work in his chambers, in court, in his toilet doing his business, on bed before he sleeps and also to read on other subjects because law operates not in vacuum but a multi-disciplinary framework that life itself encompasses.
Most important of all a temper of mind that is partial towards independence of thought and an unflinching desire to do what is right and just, no matter the countervailing pressures whether from politicians, public opinion or his judicial brethren including his boss the chief justice.
Let the Independent Judicial Commission help in appointing such judges. Make sure the Independent Judicial Commission is made out of the right persons with the right perspectives to do the proper appointing. Now if you need me to serve in such Independent Judicial Commission, you’d know how to contact me!
#17 by Jeffrey on Wednesday, 28 February 2007 - 8:35 am
Typo Error in 3 above: “He must maintain judicial decorum, some of the more dramatic examples being NOT to utter swear words, ogle at attractive female witnesses etc”.
#18 by Count Dracula on Wednesday, 28 February 2007 - 10:11 am
A Judge Should Uphold the Integrity and Independence of the Judiciary
Judge Should Avoid Impropriety and the Appearance of Impropriety in All Activities.
A Judge Should Perform the Duties of the Office Impartially and Diligently.
Judge May Engage in Extra-Judicial Activities To Improve the Law, the Legal System, and the Administration of Justice.
A Judge Should Regulate Extra-Judicial Activities To Minimize the Risk of Conflict with Judicial Duties.
A Judge Should Regularly File Reports of Compensation Received for Law-Related and Extra-Judicial Activities.
A Judge Should Refrain from Political Activity.
The above is the Code of Conduct for U.S. judges.
#19 by undergrad2 on Wednesday, 28 February 2007 - 11:25 am
“Why should we need a Code to regulate judges when persons appointed as judges ought, from the very nature of their qualification and experience necessary for appointment, to know what is proper or improper for a judge to behave?†Jeffrey QC
It is not that they do not know how to behave as judges. It is a reminder to those among them who may, from time to time, for reasons best known to them, choose to forget as to who they are. Now that judges are allowed to retire later than earlier, there is a possibility that some of them may lose their minds if not their memories while still on the bench.
#20 by greenacre on Wednesday, 28 February 2007 - 4:07 pm
All civil servant are mandated to retire by 55 years (some may say it as 56 years but the actual fact is upon actual completion of 55years.
But the law allows judges to retire at 65 and a further 6 months added. It is a wonder what judicial,legal or constitutional wisdom created this anomaly.Some benchers don’t even know difference between telegram and a statutory notice.Alas Lord Denning need to be resurrected.I would very much want him to look into a thick file of a relation of mine.