Constitutional crisis (2) – PM’s assurance that CJM nominee not the Federal Court judge with over 30 outstanding judgments from High Court days?

In the modern democratic era of accountability, transparency, integrity and good governance, the Malaysian public are entitled to information as to the causes of the constitutional crisis and impasse resulting from the deadlock between the Prime Minister and the Conference of Rulers over the filling of the seven-month vacancy of the Chief Judge of Malaya.

The Prime Minister, Datuk Seri Abdullah Ahmad Badawi should not only provide Malaysians and in particular Members of Parliament this vital information, but also clarify and assure the nation that his nominee for the Chief Judge of Malaya and the subject of the constitutional crisis with the Conference of Rulers is not the Federal Court judge who have a backlog of at least 30 outstanding judgments accumulated from his High Court days which have yet to be written and delivered.

When Abdullah launched the National Integrity Plan (NIP) in May 2004, he said that “the integrity movement is comprehensive covering all levels or sectors of the government and society”.

There is also a section in the five-year plan, NIP Target 2008, on the enhancement of the administration of justice by the judicial bodies and institutions — a new national commitment on judicial accountability, transparency and integrity. The time has come to walk this talk.

Although the Chief Justice, Tun Ahmad Fairuz Sheikh Abdul Halim is on public record as saying that judges with a backlog of written grounds of judgment would not be considered for promotion and there is a court directive that judges should complete writing their grounds within eight weeks of a trial if there is a notice for an appeal, it is most shocking that the newspaper report last month that there is a Federal Court judge who has “at least 30 outstanding judgments accumulated from his High Court days that include dadah trafficking and murder cases” (New Straits Times 23.7.07) had not elicited any denial, clarification or response from the Chief Justice.

This begs the question how the judge concerned could be promoted from High Court to the Federal Court and the criteria used for judicial promotions when he has such a huge backlog of outstanding judgments from his High Court days, causing grave miscarriages of justice.

The constitutional crisis and impasse resulting from the inability of the Prime Minister’s nominee for the post of Chief Judge of Malaya to get past two meetings of the Conference of Rulers since the retirement of Tan Sri Siti Normah Yaakob on January 5, 2007 is not just a private matter between the Executive and the Conference of Rulers but is also a matter of grave public importance for which Malaysians are entitled to the pertinent information.

The New Straits Times report of 23.7.07 referred to above is as follows:

Just write it, judges
New Straits Times

KUALA LUMPUR: Justice is sometimes not done in Malaysian courts even after judgment has been passed.

There are numerous horror stories of how the accused languished in prison just because judges did not provide written judgments.

In one case, a man withdrew an appeal against 12 years’ imprisonment and 10 strokes of the rotan on a dadah trafficking charge as his jail term had come to an end while waiting for the appeal to be heard.

The delay in hearing the appeal had been due to the judge not submitting a written judgment.

The worst cut of all was that the accused took all the strokes of the rotan at once before leaving jail – knowing that his sentence may have been reduced or overturned on appeal.

In another case in 1984, an accused charged with trafficking dadah was found guilty in 1988.

When his case went on appeal to the Supreme Court in December 1993 – a good five years later – the bench substituted the death sentence with 20 years’ imprisonment.

The judges had felt that the long delay in handing down the written judgment had prejudiced the accused.

If one thought that these were the worst case scenarios, there’s more.

A Federal Court judge has at least 30 outstanding judgments accumulated from his High Court days that include dadah trafficking and murder cases.

How he is going to come up with the written judgments is anyone’s guess, especially as he will also have to provide judgments on cases before the Federal Court.

This glaring weakness in the judicial system has irked the legal fraternity to the extent that calls are being made to only appoint judicial officers who can deliver written grounds on time.

One lawyer even suggested that judges who had been issued warnings not to delay written judgments should be hauled up before a tribunal to answer for their recalcitrance.

The Bar Council says the only solution to this vexing problem is the setting up of an independent judicial commission to appoint and promote judges.

Its vice-president, Ragunath Kesavan, said the problem could have been arrested early if candidates had been properly vetted before being appointed judicial commissioners.

“This is why we have been canvassing hard for the need to set up an independent judicial commission to appoint and promote judges,” he said.

Ragunath said written judgments were critical in the dispensing of justice.

The council will be sending out a circular soon to get feedback from members on cases where judgments had not been provided.

This will be forwarded to the chief justice for action to be taken so that judges will put their judgments in writing.

“We hope that he will also reveal the number of outstanding judgments,” he added.

Lawyer Karpal Singh said existing procedures on delivering decisions and judgments were indefinite with many judges reserving decisions after a trial.

“At the next date, they are still unable to deliver (decisions),” he said, adding that he had at least five cases that could not be appealed as judgments were not ready.

He said some gave decisions without stating reasons.

Karpal said judges who accumulated judgments simply gave up after some time as they could not recollect the facts of the case.

“One has to look into the demeanour of the witnesses to better appreciate the facts of the case.

“This would have been fresh in their mind if judgments were written soon after the trial.”

Lawyer Gurbachan Singh said prisoners facing capital punishment would be under even greater pressure if their appeals could not be heard because of delayed written judgments.

He said family members were also left emotionally drained due to the uncertainty.

Relatives of the accused were sometimes not convinced when told that the appeal process had stalled because the trial judge had not provided grounds for his judgment.

Gurbachan has two cases where judges passed the death penalty without written judgments.

“And yet, the two judges who heard the cases, have been promoted to the Court of Appeal,” he said.

Kuala Lumpur Bar Criminal Practice Committee chairman N. Sivananthan said some judges were causing grave injustice to convicts and to the Attorney-General’s Chambers.

“One must remember justice is not only for the convicted person but also for the state,” he said.

He said failure to write or delay judgments for appeal purposes was tantamount to a denial of justice.

“Whether a judge is brilliant is a secondary point. The primary consideration is that he must provide a judgment for the aggrieved party to enable them to appeal or else the administration of justice is jammed.”

He said the accused has the right to finality in his or her case and a chance to exhaust all channels of appeal.

“A person charged with a criminal offence wants his name cleared soon while a party in a civil proceeding wants to enjoy the fruits of the litigation.”

He said every judge had an important role in taking legal disputes to their natural conclusion.

What happens when judgments are delayed

A CASE of justice delayed, justice denied? Examples of what happens when written judgments are not provided.

Case No 1:

A man was convicted of dadah trafficking in the late 1980s and sentenced to death but the trial judge took a long time in providing the written judgment.

Lawyer Karpal Singh, who appeared for the man, argued before the Supreme Court that the delay had led to manifest injustice.

The late Tan Sri Hashim Yeop Sani, who led the bench, substituted the death penalty with life imprisonment of 20 years. The accused was freed because of the long remand period and later stay on death row.

Case No 2:

Two years ago, former national athletics coach C. Ramanathan won an appeal to clear his name on two molest charges.

One of the grounds cited was the delay of close to five years for the Sessions Court judge to provide a written judgment.

He had been charged in October 1994 on two counts of outraging the modesty of two underage girls in 1992 and convicted on Nov 8, 1996. But the grounds of judgment were only made available on Oct 26, 2001.

Case No 3:

A desperate housewife wrote to Chief Justice Tun Ahmad Fairuz Sheikh Abdul Halim seeking his help to expedite her husband’s appeal over his conviction on a kidnapping charge.

The High Court in Shah Alam found the husband guilty of the offence on May 16, 2005. She wrote to the top judge in August last year and sent another letter in January this year.

As a result, the Court of Appeal Registrar sent a letter to the Shah Alam High Court Deputy Registrar in February to prepare the record of appeals, which included the judgment. But there was no reply.

Counsel Gurbachan Singh, who appeared for the man, sent another letter last week enquiring if the judgment was ready.

Meanwhile, the judge who heard the case has been promoted. It may now be up to the Chief Justice to decide on the next course of action.

Case No 4:

In 2000, the High Court in Penang found a man guilty of dadah trafficking and sentenced him to 12 years’ jail and 10 strokes of the rotan.

An appeal could not be heard as the judge did not make the judgment available.

The long stay in prison soon came to an end after the deduction of one-third of the sentence on remission.

His counsel, R.S.N. Rayer, advised his client, who wanted badly to be a free man, to withdraw the appeal. The man took the 10 strokes at one go before his release in 2002.

Backlog will hinder promotion

CHIEF Justice of the Federal Court Tun Ahmad Fairuz Sheikh Abdul Halim said on Wednesday that judges with a backlog of written grounds of judgment would not be considered for promotion.

The top judge said this was one of the factors taken into account before judges were elevated.

There is a circular that states that judges should complete writing their grounds within eight weeks of a trial if there is a notice for an appeal.

  1. #1 by k1980 on Sunday, 12 August 2007 - 3:09 pm

    SPM failures will soon be appointed as public prosecutors; PMR dropouts as directors of GLCs

  2. #2 by bystander on Sunday, 12 August 2007 - 3:24 pm

    Who are these lazy and undeserving judges? How do they become judges if they cant dispense judgements expeditiously and timely to all parties? Is the selection process bias and skewed as well to the detriment of aggrieved parties? Is that why the judiciary system is in such a …. from CJ, judges, AG, prosecutors, IGP to police?

  3. #3 by dawsheng on Sunday, 12 August 2007 - 5:51 pm

    Justice? In Malaysia justice is money.

  4. #4 by Jeffrey on Sunday, 12 August 2007 - 5:57 pm

    “……//….it is most shocking that the newspaper report last month that there is a Federal Court judge who has “at least 30 outstanding judgments accumulated from his High Court days that include dadah trafficking and murder cases …..//..” – YB Kit.

    Who is this?

    Sources in Malaysia’s legal community say, an unnamed candidate who was picked over three more senior judges caused the Sultans to balk, reasserting their power for the first time since 1983.

    And who is that?

    What is the record of backlog cases without delivery of judgment in respect of the three senior judges as compared to that of the unnamed candidate, presumably less senior, picked by PM?

    Is seniority the main criteria?

    What about administrative ability?

    What about character? Has he played badminton with any DPP or gone on holidays with any lawyers?

    What happens if the less senior unnamed candidate has record of faster delivery of well written judgment for cases pending appeal?

    And what happens if this less senior unnamed candidate picked by PM is harder working, could analyse complex legal issues quicker and deeper and express his thoughts in writing with combined wit, brevity and depth?

    Should he then not be promoted over the three more senior judges?

    Hmmm Food for thought!

  5. #5 by Jeffrey on Sunday, 12 August 2007 - 6:16 pm

    The last judge we had renowned for his written judgments was the late Justice Tan Sri Dato’ Dr Eusoffe Abdooolcader who was forced to go during the 1988 judicial crisis .

    Against the backdrop of such problems of our judges delaying written judgments – and hence justice – on the eve of 50th Merdeka celebrations, it is perhaps fitting to quote here one of Eusoffe Abdooolcader’s celebrated judgments chosen for the way it reflects the kind of temper of judicial mind and values and of course the kind of language that our judges should follow.

    Before reading you’re advised to get your Oxford English Dictionary and Latin Dictionary at hand for reference. :)

    The judgment in the case of Merdeka University Bhd v Government of Malaysia [1981] 2 MLJ 357 began thus:

    “Exordium Merdeka, proclaimed Tunku Abdul Rahman to the resounding echo of the populace, and so it came to be. But the cry for Merdeka University has not achieved the same response and result. And thus the matter comes before the court”.

    Eusoffe then proceeded further: (Quote)

    “Let me immediately reiterate what I said in court at the outset of these proceedings: I am not concerned with the political undertones or overtones or whatever that may affect the questions raised in this action, and in this trial I am moved by no considerations other than of determining the issues involved purely and strictly within the confines of the Federal Constitution and the law abjuring any concomitant political or emotional offshoots springing like Athena from the head of Zeus in its wake. The Attorney General, meaning well no doubt presents a vision of doom when he speaks of the grim consequences that might ensue if grave circumspection is not exercised in weighing the respective interests, involved, but my short answer to this is, as I said in court in anticipating Mr Beloff for the plaintiff, fiat justitia, ruat coelum – let justice be done, though the heavens should fall. I said in Mak Sik Kwong v Minister of Home Affairs Malaysia [1975] 2 MLJ 168 (at page 171) and I say again, the courts constitute the channel through which His Majesty’s justice is dispensed to his people and are accordingly the bastion of their rights and the courts must therefore necessarily be the ultimate bulwark against the excesses of the executive, though I should add that unconstitutionality and illegality of administrative action and not the unwisdom of legislation or exclusive discretion in its exclusive and narrow concern of judicial review and control of administrative acts (Unquote).

  6. #6 by bystander on Sunday, 12 August 2007 - 6:27 pm

    Is it possible that our judges cannot string 2 english words together to write their judgements in English or they cannot express the legal jargon required for the judgement in BM? So maybe they want to farm out the writing of the judgement to someone, not dissimilar to hiring a speech writer for a politician? As a layman, i am very curious.

  7. #7 by k1980 on Sunday, 12 August 2007 - 6:32 pm
    Is there a separation of power where the three pillars of parliamentary democracy, namely the Legislative, Executive and Judiciary, are to operate independent of each other? By allowing the PM, who is the head of the Executive, to nominate a member of the Bench as the third highest position in the Judiciary, will the nominated Judiciary officer be made beholden and subservient to the Executive?

  8. #8 by bystander on Sunday, 12 August 2007 - 6:32 pm

    Do you think Ahmad Fairuz can write judgements like TS Dr. Eusoffe or YM Azlan? No way near if one listens to what he has said in recent cases. Then what do you expect from below him.

  9. #9 by bystander on Sunday, 12 August 2007 - 9:26 pm

    The selection of golfers into the USPGA is more stringent than our selection of CJ and judges. Isn’t our selection of judges a JOKE?

  10. #10 by sheriff singh on Sunday, 12 August 2007 - 9:29 pm

    What about the state of affairs in the Syariah Courts? Are they any better?

    I think their Highnesses are beginning to get extremely concerned that we have a runaway train situation here and are trying to do something about it.

    The driver and his team haven’t the faintest idea what is going on or what to do except to make regular boastful statements about how they are going to spending billions of ringgit on white elephants and really achieve nothing. Hot air is cheap, they float away but the morons who manufacture them remain.

  11. #11 by ENDANGERED HORNBILL on Monday, 13 August 2007 - 3:40 am

    The proposal was made by United Malays National Organisation (Umno) youth chief Hishamuddin Tun Hussein, Bernama news agency said late Saturday.

    From STI, S’pore:
    ‘Umno Youth warns that freedom has its limits and we will not tolerate those who touch on the issue of national stability, harmony, cultural values and the personality of national leaders,’ Mr Hishamuddin said.

    Those to be watched include bloggers who belittle leaders in multi-racial Malaysia as well as people who mock national symbols and instruments, he said.”

    Kerismuddin didn’t say exposes of corruption, abuse, excesses, government inefficiencies, conflicts of interest and other government wrongs or cover-ups are forbidden from blogosphere. So bloggers should carry on blogging because most of the content relates to these and are primarily intended to set things right in a nation where so-called leaders lather their nests and ignore public grievances.

  12. #12 by madmix on Monday, 13 August 2007 - 11:14 am

    After office hours, these judges are playing golf or badminton, so how to write judgments. Those old case, how are they going to remember the details of the case other than from the written notes.
    Judges with huge backlogs should be give a few months special leave to write their judgments.
    The trouble with judges is that they seem to be high and mighty and above criticism and censure that they can do anything they want including deny justice.

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