The Malaysian Bar - Stable over creative rulings

Home

News

Legal/General News

Stable over creative rulings

Sunday, 16 September 2012 11:57am

©The Star (Used by permission)
By SHAILA KOSHY

CHIEF Justice Tun Arifin Zakaria is very clear about the sort of judicial system he wants – a stable one.

To prepare judges for any challenges, the judiciary has set up a Judicial Academy under the auspices of the Judicial Appoints Commission (JAC).

“We encourage judges to do their reading and research. We also have invited foreign and local judges to talk to our judges,” he says in an interview at the Palace of Justice on the Bar Council’s 2012 International Malaysian Law Conference (IMLC) .

The Judicial Academy which is funded by the JAC has to-date conducted five workshops for superior court judges.

“Our judges are from (Attorney-General’s) Chambers and practice – they are no less equipped than lawyers,” he says.

“We also send judges for conferences and training abroad – a few went to Hong Kong for family law and to the US for IP (Intellectual Property) and to Bangkok for IP and taxation.”

The five workshops have covered topics like Section 39B of the Dangerous Drugs Act which carries a mandatory death penalty for trafficking, injunctions including foreign jurisdictions, and admissibility of evidence in civil trials.

“The most recent was on election petition, to refresh their understanding of election law because of the coming election.

“We bring judges up to date. We anticipate what is coming and we train them,” adds Arifin.

Legislation rules

Asked whether judges are just applying Parliament-made-laws when disputes arise in business and the family or do they also take into account regional treaties/agreements on investment/human rights and UN Conventions that Malaysia had acceded and ratified, Arifin replies:

“The answer is simple; as far as the court is concerned, even though Malaysia had signed and ratified UN conventions they must be enforced by legislation.”

“That’s our law. Of course in interpreting the law, we can be influenced by all these agreements and conventions but we cannot use the convention to bind the Government. We won’t do it unless it is through an Act of Parliament. That is basically our approach and that is the common law stand.”

On whether he and other senior judges have set down a policy for their juniors to follow since some judges choose to listen to arguments to apply a convention while others outright say no, he reiterates that it is a common law principle not to enforce an international convention unless it is enforced by an Act of Parliament.

“Even in England, for example the Human Rights Convention, until they passed the Human Rights Act, their agreement with the European Court of Human Rights was not enforced. Now, they are bound by the court because of the Human Rights Act they passed in Parliament.”

When pointed out that some Commonwealth countries like Australia have adopted certain conventions in their decision, Arifin maintains: “We have not moved in that direction.”

“There were one or two judges who have tried but as far as I am concerned, I’m very conservative.

“I’d rather the law be stable than one or two judges taking their own stand. Even the English courts have not moved in the direction of the Australia courts,” he says, adding that he would rather Parliament take the stand.

“Otherwise, it’s up to the whims and fancy of the judges, that’s also dangerous.”

He notes that in India and Bangladesh, life has been interpreted to include the right to fresh air.

Does that mean that if a lower court judge chooses to be more creative in coming to a decision and it went up on appeal, the higher court is more likely to take a conservative view?

“We’re not conservative in that sense, but we maintain the present trend. I would like it to be more stable,” says Arifin.

Is judicial discretion important when a law is being amended in Parliament to suit changing circumstances?

“So long as the judge acts within the discretionary power, within the confines of the letter of the law, he should be all right,” says Arifin.

“I think that is why there is the element of discretion in judicial function. Otherwise, it becomes so inflexible to accommodate changes and new circumstances which even Parliament cannot foresee when they legislate laws.”

He stresses, however, that there are guidelines for how judges exercise discretion.

“We discuss this at the conference (of judges) from time to time with other topics.”

Set as favourite

Email This