Legal Action Filed to Seek Declarations that the Appointments of the Chief Justice and President of the Court of Appeal are Unconstitutional and Void — Malaysian Bar

Press Release

Legal Action Filed to Seek Declarations that the Appointments of the Chief Justice and President of the Court of Appeal are Unconstitutional and Void

The Malaysian Bar has, pursuant to the resolution adopted by the Bar at its Extraordinary General Meeting held on 3 August 2017, filed a legal action at the Kuala Lumpur High Court on 10 October 2017 against YAA Tun Dato’ Seri Arifin bin Zakaria, YAA Tun Md Raus bin Sharif and YAA Tan Sri Dato’ Seri Zulkefli bin Ahmad Makinudin.

The full text of the resolution, entitled “Resolution on Upholding the Supremacy of the Federal Constitution and Defending the Independence and Integrity of the Judiciary”, is available here.

The sealed Originating Summons has been served on all parties. Read more

Arifin should explain why he chose Raus as chief justice, says former A-G

Source: The Malaysian Insight

FORMER chief justice Arifin Zakaria’s decision to name Raus Sharif as his successor should be put under intense public scrutiny because it has set the stage for the biggest judicial crisis in 30 years, former attorney-general Abu Talib Othman said.

Abu Talib said Arifin had to explain why he nominated Raus, especially now that the latter had passed the mandatory retirement age of 66 years and six months.

“He should come out and tell the public because it is a controversy now. And it is a matter of great public importance. He should come out and explain.

“Is he of the opinion that all the other judges who have proven to be very competent and fiercely independent in the exercise of judicial functions are not competent to be the chief justice?” Abu Talib told The Malaysian Insight.

The former A-G, now 79, also questioned the manner in which Arifin stalled his announcement to right before he officially retired. Read more

CJ declines to recuse himself in historic application by Bar, two others

Source: FMT News 

PUTRAJAYA: No one in Malaysia’s legal history has ever applied for a chief justice to recuse himself from hearing a case – until today.

The Malaysian Bar and two government critics today applied to disqualify Chief Justice Raus Sharif from hearing their leave applications in their case against the attorney-general’s failure to prosecute Prime Minister Najib Razak over the RM2.6 billion donation.

However, the three-man bench of the Federal Court, chaired by Raus himself, dismissed the application, saying there was no merit to the case.

“However, rest assured that any decision will be made with two others based on facts and law,” he told lawyers for the applicants.

Others on the bench were justices Ahmad Maarop and Azahar Mohamed. Read more

‘CJ’s tenure extension proof of discrimination against Sabah, Sarawak’

Source: FMT News 

KUALA LUMPUR: There is a glass ceiling stopping Sabah and Sarawak judges from holding the nation’s top judiciary post, said Pakatan Harapan parliamentary leaders, who all appeared to share the same observation.

Sarawak DAP chief Chong Chieng Jen said they came to this conclusion as the chief justice post had, for the past five decades, gone only to West Malaysian judges.

“The element of discrimination against Sabah and Sarawak was made more obvious in the case of denying Richard Malanjum the (chief justice) post, with the unconstitutional extension of Md Raus Sharif.”

Chong, who is Bandar Kuching MP, was speaking during a roundtable discussion on the extension of Raus’ chief justice tenure in the Parliament complex here today. Read more

No-nonsense Malanjum may complicate matters for Putrajaya, says Warisan

Source: FMT News 

KOTA KINABALU: A Sabah opposition leader said Richard Malanjum’s reputation as an impartial judge could land Putrajaya in trouble over issues of compliance with the 1963 Malaysia Agreement (MA63), and this could play a part in the government’s sidelining of the senior judge for the post of chief justice.

Parti Warisan Sabah deputy president Darell Leiking said there was a possibility that issues on the rights of Sabah and Sarawak under MA63 would be brought to the Federal Court following the Sarawak government’s fact-finding mission to London.

“It is likely that the Sarawak legal team may discover that the true spirit and letter of the formation of Malaysia vis-a-vis MA63 and its annexes have not been adhered to and a breach has occurred,” Leiking told FMT.

“Obviously, the only action that may be legally available is to consider a declaration of the validity and performance of the MA63. This kind of legal redress may likely have to be dealt with by the Federal Court.”

There have been calls recently to appoint Malanjum, who has been the Chief Judge of the High Court of Sabah and Sarawak since 2006.

It comes amid criticism of Putrajaya’s decision to extend the tenure of the current chief justice, Raus Sharif, with many describing the move as unconstitutional.

Leiking said the controversy surrounding Raus’ extension could complicate matters.

“I am concerned that a possible unconstitutional chief justice may not be able to fairly dispense justice when there could be a huge conflict between the Federal Government and the people of Sabah and Sarawak who seek justice for the Borneo states,” he said.

He said Malanjum fits the bill as the “most senior and most qualified” judge for the position of chief justice.

MPs from Sabah and Sarawak will convene a roundtable meeting in Parliament today to discuss their proposal for Malanjum to be made the next chief justice.

Leiking said that any controversial appointee to the post might be reluctant to go against the powers that had a hand in his appointment.

“Such a possible bias may trickle down to all judges and may eventually lead to justice not being done to all citizens of the federation,” he added.

He warned that Barisan Nasional (BN) might lose votes in Sabah and Sarawak for the government’s failure to choose Malanjum for the post.

He added that BN was again clearly ignoring the expectations of the people at large, which was a gift for the opposition.

Bar groups reject PM’s role in judicial appointments

Source: FMT News

JAC must be absolutely free of executive influence, says Malaysian Bar president.

Malaysian Bar president Steven Thiru – The Malaysian Insider file pic, February 23, 2016.

Malaysian Bar president Steven Thiru – The Malaysian Insider file pic, February 23, 2016.

PUTRAJAYA: The three bar associations in Malaysia have declared that they reject the current practice of giving the prime minister a say in the appointment and promotion of judges, according to Malaysian Bar president Steven Thiru.

In a speech at the ceremonial opening of the new legal year, Thiru said the Malaysian Bar, the Sabah Law Association and the Advocates’ Association of Sarawak were in fact in agreement that the executive branch of government should have no part at all in the process.

He said the present system placed inordinate powers in the hands of the prime minister, who could veto without justification the recommendations of the Judicial Appointments Commission (JAC).

“While the executive is entitled to express its views, the final recommendation to the Conference of Rulers should emanate only from the JAC,” he added.

He said the exclusion of the prime minister from the process would remove any concern that appointments and promotions were prejudiced and candidates were rejected because they were not favoured by the executive. Read more

Hakim mesti berani, jangan gentar bersikap bebas, kata bekas hakim

Sumber: The Malaysian Insider

Jawatan seorang hakim melibatkan kepercayaan orang awam dan amanah itu jangan sesekali dikhianati, kata bekas hakim Mahkamah Rayuan Datuk Mohd Hishamudin Mohd Yunus hari ini. – Gambar The Malaysian Insider oleh Seth Akmal, 19 Disember, 2015.

Jawatan seorang hakim melibatkan kepercayaan orang awam dan amanah itu jangan sesekali dikhianati, kata bekas hakim Mahkamah Rayuan Datuk Mohd Hishamudin Mohd Yunus hari ini. – Gambar The Malaysian Insider oleh Seth Akmal, 19 Disember, 2015.

Jawatan seorang hakim melibatkan kepercayaan orang awam dan amanah itu jangan sesekali dikhianati, kata bekas hakim Mahkamah Rayuan Datuk Mohd Hishamudin Mohd Yunus hari ini.

Bercakap kepada hadirin sebuah forum, beliau menggesa hakim-hakim agar berani mempertahankan kebebasan mereka dalam melaksanakan tanggungjawab.

“Apa yang hakim mahukan? Mereka mahu dihormati atau dipandang enteng warganegara?

“Benar mereka perlu berhadapan eksekutif yang amat berkuasa, berkuasa melantik, menaikkan pangkat malah memecat hakim dalam kes tertentu,” katanya.

Beliau berkata demikian sewaktu menjawab soalan hadirin tentang cara melindungi hakim daripada dimangsakan dalam sistem sekarang.

Menurut Hishamudin, situasi itu tidak patut menjadi alasan buat hakim untuk tidak mempertahankan kebebasan mereka.

“Orang yang suka menurut perintah tidak patut menerima lantikan menjadi hakim.

“Kehakiman adalah kepercayaan awam dan ia jangan sama sekali dikhianati,” katanya. Read more

Retired judge points out weaknesses in judicial appointments

Source: FMT News

Ever since the sacking of Tun Salleh Abbas, who was then Lord President, many have described the 1988 crisis as the end of judicial independence in Malaysia.

Retired Court of Appeal Judge Mohamad Ariff Yusof - pic from FMT News

Retired Court of Appeal Judge Mohamad Ariff Yusof – pic from FMT News

KUALA LUMPUR: Certain people who deserve to be appointed to the apex court were not promoted, claimed retired Court of Appeal Judge Mohamad Ariff Yusof at a public forum.

Ariff stressed during the forum, organised by the Bar Council, that there were weaknesses in the system. “The system should be reviewed.”

According to him, the major weakness in the judiciary was appointments can only be made upon the recommendation of the Prime Minister. “The weak link lies in the need to have the recommendation referred to the Prime Minister,” he said. “That’s where it is. I don’t dare say anything more.”

“There are those who deserve to be at the apex (court) but are not appointed. Some thought should be given to how to improve the system.” Read more

Judiciary must be fearless, independent, says retired judge

Source: The Malaysian Insider

Retired Court of Appeal judge Datuk Mohd Hishamudin Mohd Yunus says judgeship is a public trust. – The Malaysian Insider file pic, December 19, 2015.

Retired Court of Appeal judge Datuk Mohd Hishamudin Mohd Yunus says judgeship is a public trust. – The Malaysian Insider file pic, December 19, 2015.

The position of a judge is one of public trust and on no account should that trust be betrayed, retired Court of Appeal judge Datuk Mohd Hishamudin Mohd Yunus said today.

He also told the audience at a forum that judges should be courageous and assert their independence in carrying out their duties.

“What do the judges want? They want to be respected or they want to be looked down upon by the citizens?

“It is true that there’s a powerful executive to contend with, who has the power of appointment, promotion and even removal of judges in some cases,” he said, in answer to a question from the audience on how to protect judges from being victimised.

Hishamudin said the threat of being victimised should not be reason for judges to refuse to assert their independence.

“A person who is meek should not accept the appointment to be a judge.

“Judgeship is a public trust and this trust must not be betrayed,” he said. Read more