Sustain supremacy of constitution, urge legal eagles

Source: Free Malaysia Today

PETALING JAYA: The three arms of the government — the executive, legislature and judiciary — must uphold the supremacy of the 60-year-old constitution, following a recent landmark ruling, a retired judge and lawyers said.

They also said judicial power and judicial independence were sacrosanct in the Malaysian constitutional framework to keep every organ and institution of the state within its legal boundary.

The legal minds said ministers, elected or appointed members to the legislature and judges must give effect to their oath of office to protect, preserve and defend the constitution — the supreme law of Malaysia.

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HAKAM STATEMENT: On Lack of Diversity in Appointments to High Office in the Judiciary

STATEMENT DATED 24 Jul 2017

LACK OF DIVERSITY IN APPOINTMENTS TO HIGH OFFICE IN THE JUDICIARY

1.  The appointment of the present Chief Justice and President of the Court of Appeal to continue in their posts after the mandatory retirement age of 66 years plus a further 6 months allowed by the Constitution – has understandably generated a great deal of controversy in legal circles as well as the public. Many question the constitutionality of these appointments.

2.  It is unfortunate that we have the highest levels of our judiciary embroiled in a constitutional crisis when it is the apex Federal Court that routinely deals with constitutional matters.

3.  Is it not apparent that the time is long overdue to appoint the most qualified judge from East Malaysia to fill the post of Chief Justice?

4.  And is it also not equally apparent that it is long overdue for a lady judge to be elevated to the position of one of the office holders in the Judiciary?  It is imperative to address the lack of a gender balance in the top echelons of the Judiciary.  There are highly qualified women who are now Federal Court judges who richly deserve the right to be considered for these posts.  Tan Sri Siti Norma Yaakob was the last and only lady judge of the Federal Court appointed as Chief Judge (Malaya) from 8th February 2005 – 5th January 2007.  This was more than a decade ago.

5.  The Judiciary, above all others, must uphold the Federal Constitution in word and in spirit. It must reflect in its appointment process to high judicial office, the salutary Article 8 that (all other things being equal), there shall be no discrimination on the ground of “religion, race, descent, place of birth or gender”.

6.  While preparing this statement it was announced that Baroness Hale will be the first female president of the Supreme Court of the United Kingdom. A timely reminder for our Judiciary from this fresh breeze from afar.

 

Issued by

Ambiga Sreenevasan
President
HAKAM

 

STATEMENT: On Lack of Diversity in Appointments to High Office in the Judiciary

pdfSTATEMENT DATED 24 Jul 2017

LACK OF DIVERSITY IN APPOINTMENTS
TO HIGH OFFICE IN THE JUDICIARY

1.  The appointment of the present Chief Justice and President of the Court of Appeal to continue in their posts after the mandatory retirement age of 66 years plus a further 6 months allowed by the Constitution – has understandably generated a great deal of controversy in legal circles as well as the public. Many question the constitutionality of these appointments.

2.  It is unfortunate that we have the highest levels of our judiciary embroiled in a constitutional crisis when it is the apex Federal Court that routinely deals with constitutional matters.

3.  Is it not apparent that the time is long overdue to appoint the most qualified judge from East Malaysia to fill the post of Chief Justice? Read more

Azalina: Raus’ appointment based on former CJ’s advice

Source: FMTNews

July 11, 2017. PETALING JAYA: Putrajaya today defended the extension to chief justice Md Raus Sharif and Court of Appeal president Zulkefli Ahmad Makinudin’s respective tenures, stating it was based on the Federal Constitution and on the advice of the then Chief Justice Arifin Zakaria, before he retired.

Minister in the Prime Minister’s Department Azalina Othman Said said Arifin had advised the Yang di-Pertuan Agong on March 30, on making Raus and Zulkefli additional judges, while he was still the chief justice. Read more

Hooray for the judiciary — Tunku Zain Al-‘Abidin

Source: The Malay Mail Online

BY TUNKU ZAIN AL-‘ABIDIN

MAY 12 — On recent occasions where I’ve been asked to speak on our Federal Constitution, I have quoted five legal luminaries from our history: Tuanku Abdul Rahman, Tunku Abdul Rahman, Sultan Azlan Shah, Tun Mohamed Suffian and Raja Aziz Addruse.

Confusion sometimes arises from the first two, while non-legal audiences don’t know the last two. Hopefully one day all young Malaysians will be familiar with these names, and what they contributed in relation to the law. Read more

AG, Bar associations yet to be consulted on new JAC appointments

Source: The Star Online

KUALA LUMPUR: The two-year term of the four eminent persons on the Judicial Appointments Commission (JAC) ends on Thursday but the Prime Minister has not consulted any of the three Bar associations or the Attorney General on their replacements.

Under the JAC Act 2009, the appointments are made “after consulting”  the Bar Council, the Sabah Law Association, Advocates Association of Sarawak, the Attorney General of the Federation, the Attorney General of a State legal service or any other relevant bodies.

According to the Act, eminent persons can serve for a maximum of two years and the current team, first appointed in 2013, are in their second term, ending Feb 9.

They are Tan Sri Haidar Mohd Noor, Tan Sri Sulong Matjeraie, Datuk Tee Ah Sing and Datuk T. Selventhiranathan.

This time, Prime Minister Datuk Seri Najib Tun Razak did not consult the Bars as he did previously.

The Star reported on Jan 21, 2013, that Najib had suggested six names for the four eminent persons post. Read more

Need for an enlightened judiciary — Gurdial Singh Nijar

Source: The Sun Daily

BY GURDIAL SINGH NIJAR
(Deputy President, HAKAM)

OF late we have heard a ratcheting up of proposals to fortify our body politic – by amending the Federal Constitution. The outgoing chief justice proposes that we amend the constitution to entrench the right to a clean and healthy environment. Several NGOs also clamour for the inclusion of the tenets of the Rukun Negara as a preamble to our constitution.

All very laudable. And certainly well-meant, of course. These beneficent add-ons cannot but help strengthen the protection of the environment, the rule of law, rights, preserve the integrity of institutions and keep unbridled power in check.

The objective is to ensure that new laws are shaped – and existing laws reshaped – to put into effect the thrust of these changes; and by which the country’s governance will be adjudged. And that the courts, as the final arbiter when there is a contestation between the citizenry and the executive, will implement these accordingly.

This is where the rub lies. There are already sufficient provisions in our laws – written laws passed by Parliament, the common law (pronounced by court decisions) and the custom or usage of our natives (the orang asal of Sarawak and Sabah; and the orang asli of Peninsular Malaysia) – to achieve the same objectives. 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

The democratic challenge? – Gurdial Singh Nijar

Source: The Sun Daily

BY GURDIAL SINGH NIJAR
(Deputy President, HAKAM)

I WAS prodded into writing this piece by a provocative blog poser – Will our judiciary uphold our democracy? First, it depends what you mean by “democracy”. Human rights? The constitution? Both?

Yes, both work together. Human rights arise the day we are born. They are integral to the free existence of all. Freedom of speech, movement, association and the like. A baby cannot be shackled to its cot. It must be given the freedom to roam the house – try out its crawl that then develops into baby steps; then it learns to run, speak, think. Maturing as he or she develops. So human rights precede all man-made “human rights” laws and constitutions. It comes with the human condition. Read more

CJ says can’t judge Malaysian court decisions by ‘Western’ rights standards

Source: The Malay Mail Online

Palace_of_Justice_Putrajaya_840_620_465_100

Citing the Human Rights Commission Act 1999, Arifin pointed out that human rights in Malaysia is defined as fundamental liberties that are enshrined in Part 2 of the Federal Constitution. — File pic

KUALA LUMPUR, Jan 8 — Critics should not measure local court decisions using “Western” human rights standards that may not always match Malaysian values, Chief Justice Tun Arifin Zakaria said today.

Arifin noted that civil society has criticised some court decisions as “violating individual freedoms and curtailing freedom of speech and association”, but insisted that Western values and human rights norms cannot be the “ultimate yardstick” in Malaysia.

“In making these criticism, the standards applied by way of comparison are those of mature, Western orientated democracies.

“With respect, the application of Western norms which are not always in accordance with the values and culture of Malaysian society do not allow for a direct comparison of standards emanating from the West,” he said in his speech at the ceremonial opening of Malaysia’s Legal Year 2016.

Citing the Human Rights Commission Act 1999, Arifin pointed out that human rights in Malaysia is defined as fundamental liberties that are enshrined in Part 2 of the Federal Constitution.

He also said the Malaysian value system is found in the Rukun Negara, specifically the pledge by Malaysians to abide by the core values of “Belief in God, Loyalty to King and Country, Upholding the Constitution, Rule of Law and Good Behavior and Morality”.

“Therefore, the standards for measuring our adherence to human rights ought to be measured against these benchmarks,” he said. Read more