Did EC insult Parliament, saying Hansard can’t be believed, ask MPs

Source: Free Malaysia Today

PETALING JAYA: Opposition MPs say that the Election Commission (EC) may have insulted Parliament by rejecting evidence from the Hansard – the official record of parliamentary proceedings – stating the contents “cannot be believed”.

PKR’s R Sivarasa said the law clearly views Hansard publications as an official document of Parliament, with Section 78 of the Evidence Act (EA) 1950 stating that the proceedings of Parliament are proved by the minutes kept in the Hansard.

“Section 81 of the EA provides that copies of the Hansard are presumed to be genuine. This is provided under the law. It is the official document.

“For them to say the document cannot be believed shows they are ignorant of the law,” the Subang MP told FMT.

Sivarasa, who is a lawyer, was referring to the revelation at a press conference today, where DAP legal bureau secretary Michelle Ng Mei Sze said the Johor registrar of electors had rejected a voter objection deeming the Parliament Hansard (official record) as not credible.

She was referring to the objection hearings pertaining to the entry of 949 army personnel and their spouses in the Segamat constituency.

Ng had said the applicant was told by the registrar that the Hansard produced “cannot be believed”.  Read more

Judicial power restored after almost 20 years — Surendra Ananth

Source: The Malay Mail Online

Surendra Ananth is an advocate and solicitor in the High Court of Malaya. He is also deputy co-chairperson of the Malaysian Bar Constitutional Law Committee.

Surendra Ananth is an advocate and solicitor in the High Court of Malaya. He is also deputy co-chairperson of the Malaysian Bar Constitutional Law Committee.

APRIL 27 — The 1980s was a difficult time for the then Prime Minister Datuk Seri Dr Mahathir Mohammad. The judicial institution was vigilant in defending the liberties of citizens against arbitrary actions by the Executive. The then prime minister could not accept this. It flies in the face of dictatorship.

In 1986, dissatisfied with several decisions of the courts that he felt unfairly limited the powers of the executive, Dr Mahathir began an increasingly acrimonious campaign against the judiciary.

This campaign resulted in two major incidents.

The first was the 1988 judicial crisis. Tun Salleh Abas (the then Lord President of the Supreme Court) was removed from office and five other Supreme Court judges were suspended.

The second was the amendment to the Federal Constitution. On March 17, 1988, a bill entitled Constitutional (Amendment) Bill 1988 (the “Bill”) was moved in the House of Representatives by Dr Mahathir. Clause 8 of the Bill sought to remove the term “judicial power” from Article 121(1) of the Federal Constitution. Read more

Strengthening separation of powers — Shad Saleem Faruqi

Source: The Star Online

BY SHAD SALEEM FARUQI

Shad Saleem Faruqi - file pic

Shad Saleem Faruqi – file pic

From the point of view of judicial independence, there are many objectionable features of the Judicial and Legal Services Commission’s set-up.

A CORE feature of a constitutional state is that the judiciary must be separate from and independent of the other branches of the state. Judges must be men and women of integrity, impartiality and legal wisdom.

Most constitutions contain some safeguards for judicial independence. But will the appointee soar above the timberline of the trivial and transcend the pride, prejudices and temptations that afflict ordinary mortals?

These are personal attributes that no constitution can guarantee.
Read more

Article 121 amendment illegal, says ex-judge

Source: FMT News

Gopal Sri Ram says changes in 1988, which effectively removed the independence of the judiciary, is illegal because it cuts across basic structure of written Federal Constitution. Pic from FMT News.

Gopal Sri Ram says changes in 1988, which effectively removed the independence of the judiciary, is illegal because it cuts across basic structure of written Federal Constitution. Pic from FMT News.

PETALING JAYA: The amendment to Article 121 of the Federal Constitution in 1988 has effectively stripped the judiciary of its independence, a retired Federal Court judge says.

Gopal Sri Ram said the amendment to remove the phrase “judicial power of the Federation” during the term of former prime minister Dr Mahathir Mohamad restricted the judiciary, and thus had ruined the constitutional scheme of Malaysia.

“As a result, the Federal Court in a murder case of a teenager held that the court only has such powers and jurisdiction that Parliament allows it to have,” he told FMT.

Sri Ram said this in response to an observation made by Navi Pillay, a former United Nations High Commissioner for Human Rights that Malaysia did not have an independent judiciary.

At a talk in Penang last week, Pillay who now sits on the constitutional court of South Africa, said the jurisdiction of the Malaysian judiciary was circumscribed by Parliament through that amendment in 1988. Read more

It’s a motion: Legislative process for Private Member’s Bill — Ooi Heng

Source: The Malay Mail Online

BY OOI HENG

Malaysian Parliament — MMO file pic

Malaysian Parliament — MMO file pic

OCTOBER 15 — Dewan Rakyat will resume sitting on the 17th of October. The Dewan Rakyat Order Paper showed that the first four items of business consists of three motions and one Government Bill. The motion by the President of Pan-Malaysian Islamic Party (PAS) and Member of Parliament (MP) for Marang, Hadi Awang, is being listed as the fourth item. It is understandable that the media are focusing on this fourth item.

In the past, the media tend to make such reports, treating a motion as a bill, and treating the legislative procedure of a Private Member’s Bill as the same as that of a Government Bill. Dealing with the controversial ‘Hudud issue’, the media currently need to present the aspects of the different legislative procedures.

The legislative procedures for Government Bills and non-Government Bills are not indifferent. Those being presented by Government frontbenchers or ‘MPs who are ministers’ are Government Bills, while those being presented by the so-called ‘ordinary Members of Parliament’ (ordinary MPs) or ‘MPs who are not ministers’ are non-Government Bills. The Government frontbenchers are representing the executive branch, while the ordinary MPs consisting of government backbenchers, opposition MPs and independent MPs, are representing the legislative branch. Read more

Suhakam: Independent judiciary will protect human rights

Source: FMT

The 1988 crisis is a black mark and no attempt should ever be made again to emasculate the independent power base of the judiciary, says Suhakam chairman Razali Ismail.

KUALA LUMPUR: The government must ensure there is an independent judiciary to protect human rights and fundamental freedoms, Malaysian Human Rights Commission (Suhakam) chairman Razali Ismail said.

“This is by implementing adequate strategies and measures to maintain the independence and impartiality of the judiciary, and to ensure the moral integrity and accountability of the members of the judiciary,” he said in his key note address at the International Malaysia Law Conference here today.

The former diplomat said the rule of law needs an independent judiciary to provide proper checks and balances on the effectiveness of the government in protecting human rights and fundamental freedoms.

Razali recalled that prior to 1988, the Malaysian judiciary was considered as one of the most independent internationally.

He said the judiciary went through a turbulent time during the crisis which resulted in the sacking of the then Lord President of the Supreme Court, and five other judges met the same fate. Read more

Cabinet paper in the works for judicial and legal services separation, says CJ

Source: The Malay Mail Online

Chief Justice Federal Court of Malaysia Tun Arifin Zakaria speaks to reporters at the International Malaysia Law Conference 2016 in Kuala Lumpur, September 21, 2016. ― Picture by Yusof Mat Isa

Chief Justice Federal Court of Malaysia Tun Arifin Zakaria speaks to reporters at the International Malaysia Law Conference 2016 in Kuala Lumpur, September 21, 2016. ― Picture by Yusof Mat Isa

KUALA LUMPUR, Sept 21 ― A Cabinet paper is being prepared regarding the proposal to separate judicial and legal services at the lower court levels, Chief Justice Tan Sri Arifin Zakaria said today.

“There is progress, the Cabinet paper is being prepared,” Arifin told reporters after attending the Malaysia Bar’s International Law Conference there.

Arifin, who has been pushing for the separation, previously said in July that the proposal has been submitted to the Judicial and Services Commission for approval.

However, he did not give a specific deadline as to when the proposal will come into effect. Read more

The AG, judges and separation of powers — Gurdial Singh Nijar

Source: The SunDaily

BY GURDIAL SINGH NIJAR
(Deputy President, HAKAM)

THE chief justice of Malaysia, Tun Arifin Zakaria, has made a rather dramatic and long overdue proposal: that the Judicial and Legal Services Commission be separated. This commission, set up by the Federal Constitution, extends to all members of the judicial and legal service. The former comprises members of the judiciary – judges and magistrates; the latter are officers in the Attorney-General’s Chambers (AGC) who fight cases on behalf of the government. The attorney-general (AG) is its head. He advises the government – the prime minister (PM), ministers, and government ministries and departments.

The commission is made up of heads of the judicial services as well as the AG. Its functions cover appointments, promotions, and transfers of members of both the judicial and legal services.

The CJ’s proposal means that the AG will not be part of a future separated Judicial Commission. This is significant. Under the present system the AG and its officers often appear before magistrates and judges who are far junior to them. A magistrate may be transferred to the AG’s Chambers. This could well affect the mind of the magistrate when deciding a case against officers from the AG’s Chambers. Read more