SPEECH AT THE MALAYSIAN JUDGES’ CONFERENCE 2008
Marriott Putrajaya 8 – 11 April 2008
By Dato’ Abdul Hamid Mohamad Chief Justice of Malaysia
This is the first and the last time that I am addressing this
conference. So, you can afford not to listen to me. However, as I had said in my
inaugural speech, even if I were to be the Chief Justice for only one day,
during that one day, I was determined to do what I honestly believe to be right.
That includes saying what I honestly believe to be right and need to be said.
Since this is the only conference that I will be chairing, I would like, as far
as possible, to concentrate on the administration of justice rather than pure
administrative matters. This is a matter of priority at this point of time. I
believe that this Conference of the Council of Judges is required by law to be
held at least once a year to discuss current legal issues and issues pertaining
to the administration of justice rather than the size of the epaulet and the
uniform of drivers even though I do not say that they cannot or should not be
raised or discussed.
We meet today under very different circumstances from what we used to do as far
as I can remember. Not only the holders of the top three posts are new, the
perceptions of the public towards the Judiciary, rightly or wrongly, are also
different. We cannot deny that the Judiciary is now suffering from negative
perceptions by the public. Ironically, it is not the result of what had just
happened over the past few months. It is an accumulation of what have been
happening or perceived to have happened over the past two decades, beginning
with the dismissal of Lord President Tun Salleh Abas and the two former Federal
Court Judges. Politicised to the hilt, the full effect is now felt and we bear
the burden of trying to redeem those negative perceptions.
The negative perceptions of the public towards the Judiciary are not caused by
factors from within the Judiciary alone. They are also due to factors coming
from outside the Judiciary that affect the Judiciary. So, to redeem the
situation, both factors must be addressed.
There have been talks about “reforming the Judiciary”. Personally, I am very
reluctant to use such high–sounding word as “reform” for fear that, in reality,
it may end up as described by the Malay proverb: “Indah khabar dari rupa”. So, I
shall not use it. Others can use it. I prefer to pinpoint the specific causes
and try to find solutions for them.
First and foremost, the Legislature, the Executive and the Judiciary must
respect each other’s jurisdictions. They must subscribe to and practise the
doctrine of separation of powers as provided by the Federal Constitution. There
must be mutual respect for each other’s jurisdictions. The Executive should not
and should not appear to interfere with the decisions of the Judges. The Judges
should be strong enough to resist any attempt to interfere with their
independence, if such an occasion arises. As I had said in my inaugural speech,
a lot depends on the Judges themselves: whether they are strong enough to
maintain their independence. Speaking for the Judiciary, once the public is
convinced that there is no interference by the Executive in the decisions of the
Judges, half the battle is won.
Next comes the role played by the Judges themselves. If the public is convinced
that the Judges are independent, incorruptible, hard–working, fair and free from
any vested interest, then, we are in the right direction in redeeming the
situation.
In this respect, the choice of persons to be appointed as Judges is important.
As I said at Universiti Utara Malaysia, “Kalau tanam pokok pisang kelat, jangan
harap akan dapat buah pisang emas”. We should apply the correct criteria in
choosing them, such as integrity, knowledge, incorruptible, hard–working, fair,
of good character and able to “buat kerja”. Judgeship is not a reward, not a
semi–retirement, not a solution for a problem somewhere else. It is hard–work,
honest hard–work.
In this regard, lawyers, parties, the press and members of the public too have a
role to play. Everyone has to be honest in dealing with the courts. The press
should report fairly and accurately the judgments of the court. There are
members of the public whose only concern is their personal interests. As far as
they are concerned, the Court is right if it decides in their favor and wrong if
it decides against them, irrespective of the law and the evidence adduced in
court. The moment a Judge decides against them, they write malicious complaints
against the Judge accusing him of corruption and bias. By tradition, Judges do
not respond. Sometime, I wonder whether Judges, who are expected to ensure that
everyone who appears before them be treated fairly and be given the right to be
heard should not themselves have the same rights. Are they not “members of the
public” too? Of course, I am not advocating a departure from the established
tradition.
Of late, we also hear suggestions for the appointment of a “commission” or
“committee” (or whatever it is called) to vet candidates for the appointment of
Judges and more senior posts. I have been asked many times for my view on the
suggestion. Let me say it here. I take the stand that it is a policy decision
for the Executive to make. If the Executive, in its wisdom, believes that it
will help in identifying the right candidates, if it will help to redeem the
negative perception of the Judiciary, if it will help to redeem the negative
perception towards the Executive in the appointment of Judges, if it will help
to regain the confidence of the public in the Judiciary and the Executive in
relation to the Judiciary, why not? However, we must also ensure that the right
people are appointed to the commission or committee. They themselves must be
people of integrity, knowledgeable, incorruptible, fair and without any vested
interest. They should not have an agenda of their own. Neither should they be
the conduit for lobbying for the judgeship. Again, as I have said at the
Universiti Utara Malaysia, whatever system we have, in the final analysis, it is
the people who implement the system that matters.
I have also been asked many times for my view regarding the proposed apology to
the former Lord President, Tun Salleh Abas and the other two former Federal
Court Judges. So far, I have refrained from giving any response. I know I will
be asked again. Let me say it now and here. Again, it is a policy decision for
the Executive to make. As far as I am concerned, if the Executive, again, in its
wisdom, believes that it is a proper thing to do, I welcome it. After all, in
that episode, the Judiciary was on the receiving end.
Brothers and sisters,
I think it is important that we always bear in mind that, as Judges, while we
judge people, people judge us. The public expects a high standard of honesty and
integrity from judges. We are the last hope and the last frontier for the
people. If they think, rightly or wrongly, that they cannot trust judges, who
else can they trust? We all know what is right and what is wrong for judges to
do or not to do. The question is, whether, in spite of that, we still do what we
know we should not do and do not do what we know we should do. I cannot do more
than to appeal to your good conscience to guide you. Of course, there may be
cases where the law will have to take its own course.
The nature of work of a judge is very difficult to measure. Statistics may not
tell a lie but it may not tell the whole truth. But, when statistics are
intentionally manipulated, it will never tell the truth. Furthermore, one case
is not always equal to another case in terms of complexity and the amount of
time required to dispose it. So, while statistics may give some indication of
the amount of work a judge does, it is not a very reliable benchmark. Yet, it is
about the next best thing that we have, provided it is honestly prepared. In any
event, with or without statistics, those who are acquainted with the courts know
who are really working and who are not.
It is quite impossible to monitor who is doing what during office hours.
Besides, some people are faster than others even in doing the same work and
producing a similar quality of work. Actually, as judges, we do not need to be
monitored by anybody. (We should be monitoring the subordinate court judges and
the officers of the court.) We should know our responsibilities. We should be
honest with ourselves as to how we spend the office hours. But, while we are
quick to complain if our salaries are paid less or late, how often do we ask
ourselves how much time we spend speaking on the telephone and out of that how
many percent is about work? How much office time do we spend doing our work and
how much on private matters? How much time do we spend lecturing lawyers and
members of the public in open court over trivial matters or matters that should
not even be an issue at all, and so on? Please search your own conscience.
Recently, I nominated two Judges to attend two separate conferences abroad. They
both, separately, requested that they be excused. I was touched by the reason
they gave which turned out to be the same i.e. it was difficult for them to
adjust their cases. It shows how concerned they were about postponing cases even
when I was the one who nominated them to attend the conference. It shows their
attitude towards their work.
I am telling you this story not because I want to single out some Judges and
praise them. Neither am I sending a message that when nominated to attend a
conference or seminar locally or abroad that you should decline the nomination.
(When I nominate any of you for such purpose, I know that cases will have to be
postponed and that is excusable.) But, I am telling this story because I want
the public to know that a majority of Judges are very conscientious about their
work. Credit should be given where it is due.
Judgments are something that every judge should be proud of. They are something
very personal. They reflect our knowledge, our intellectual honesty, our
analytical power, our ability to grasp the issues, our ability to think straight
or otherwise, our ability to express ourselves clearly or whether we ourselves
are confused, our command of the language, our style of writing, indeed our
whole character. I do not understand why any judge would not want to be proud
enough to produce his or her own literary masterpieces.
I am told that in the United States the clerk of a judge drafts the judge’s
judgments. I do not know how the system works and I pass no judgment on it. But,
in our present context, I do not think it is a practice that we should adopt.
Besides what I have said, from experience, when we are writing the judgment
ourselves, we will be more meticulous in examining the evidence, the law and the
arguments. We will see points which did not cross our mind before. If it is our
research officer who puts up the draft, how does he make our observation of the
witnesses’ demeanor? When the judgment is written for us, there is a great
temptation for us to merely place our signature to reduce the statistic of
unwritten judgments. It may even encourage corruption on the part of the
officers who put up the judgments. Why require an experienced person to be
appointed a Judge and pay him a high salary if the most important work of the
job is going to be done by a junior officer who could be paid less? When a
research officer puts up the judgment, the quality of work that will come out
will be that of a junior officer, unless he or she is better than the Judge, in
which case he or she should be the Judge. In any event, think of the perception
of the public, what more the losing party who may lose his life, liberty or
property! I think it is a dereliction of duty for a Judge to ask someone,
including his or her research officer to draft his or her judgment, and it is a
misconduct to get someone, including his or her research officer to write it for
him of her. A Judge who writes a judgment for another Judge, a Judge whose
judgment is written by another Judge and a Judge who allows himself to be
influenced by another person in arriving at his decision, commits a misconduct.
I know, I cannot tell you what decision to make in a case and what to say in
your judgments. However, I believe that I am entitled to state my views as a
general observation for your consideration. When a provision of the written has
been in the statute book for decades and the courts, including the apex court
had repeatedly considered and consistently ruled on the provision, we should, as
far as possible, not change the interpretation. If a change to the law is
needed, let it be done by the Legislature. We should learn from the two previous
experiences. Remember the “beyond reasonable doubt” and “prima facie” fiasco.
The Criminal Procedure Code had been there for decades. Courts had consistently
ruled what the test was. Even a first year law student had no problem
understanding it. Then came Hua Tua Tau, a Privy Council judgment in a jury
trial from another country. We adopted it. That too became established law. Then
we decided to revisit it. We went back to the “beyond reasonable doubt” test.
All these while, the provisions of the law in the statute book remained the
same. But we kept giving different meanings to it.
Perhaps, the learned Judges who decided to go back to the “beyond reasonable
doubt” test, thought that it was merely a change of password and did not realize
the serious and massive implications that it would cause. As a result tens, if
not hundreds, of cases were affected: accused persons were either acquitted or
have the charges against them reduced. It was not so much because the
convictions could not be supported by evidence but because a wrong phrase
treated as a “password” was used. The Legislature had to intervene.
While that fiasco was quieting, there came another one: the courts, including
the apex court, were wrong all these years: there cannot be “double
presumptions”. You all know the effects.
Regarding “double presumptions”, my question is, what is the reason behind the
new thinking regarding the meaning of the provision of the law that has been
there for decades and so interpreted for decades? It may be that “a more learned
Judge” suddenly sees something in the wording of the provisions that other
judges had not seen. Or, as one retired judges said, it was a reaction of the
court to the mandatory death sentence provided by the law. If it were the
former, it would be quite acceptable, except that, unless the previous judges
had been glaringly wrong, I think we should be very slow to upset the
long–standing interpretation. But, if it were the latter reason, I do not think
it is a valid reason. We should know our function. Whether we like the law or
not, whether we think it is harsh or not, if the law is a valid law, it is our
function to apply it. No Judge is a parliament.
I am of the view that where a law has been there for decades and has been
interpreted in the same way again and again for decades, judges should be very
slow to upset the interpretation. There is a case for continuity and certainty,
what more when it leads to serious, unwarranted and unforeseen consequences.
We respect judgments of courts in other jurisdictions. But, I do not think that
judges should merely cite passages from judgments of courts in other countries
and blindly follow what they say. We should look at the context in which it is
said. We should look for the ratio of the case considering the facts of the case
and the written law of the country. A judgment of the House of Lords in England
may not only be based on the laws of England but also the various European Union
Conventions that England is a member. Malaysia is not a part of England, nor a
member of the European Union. The provisions of our written law may be
different. Our local circumstances and public policy may be different. We must
always bear all these factors in mind.
Perhaps facilitated by modern technology, I see more and more cut–and–paste
judgments. Passages are lifted up and pasted on the judgment without considering
the facts and the ratio of the case. As a result the law gets extended further
and further and, at times, at the expense of the provisions the statute. At
times, even the whole of the law firm’s letter–head, together with the names of
all the partners and the assistants and the telephone numbers of the firm is
reproduced in the judgment. Whatever for?
Recently, I spoke about the so–called “development” of administrative law in
Malaysia in particular in relation to Industrial Court awards. I am not going to
repeat it. I am only bringing it to your attention for you to think about it. I
don’t even say that I am right.
Relating to this issue too, is the part played by the court in regard to
arbitration. Arbitration was introduced with a view to speedy and (hopefully)
less expensive settlement of disputes. It is the in–thing now and a big business
in many countries, including our neighbor, Singapore. Recently, when attending a
conference in Abu Dhabi, the Chief Justice of Singapore told me that the number
of cases filed in the courts in Singapore has declined significantly. I asked
him for the reason. He said, “Arbitration.” Mind you, that is in spite of the
fact that Singapore courts, comparatively, dispose of cases much faster than our
courts.
The new Arbitration Act 2005, which is based on the UNCITRAL Model Law defines
the limited area in which a court has the power to intervene in arbitrations.
This is in line with modern jurisprudence throughout civil law and common law
systems. The Act also creates a distinction between domestic and international
arbitrations giving the Court wider power to intervene in domestic arbitrations
than in international arbitrations. However, domestic parties can opt for the
international regime and vice versa.
Judges should always bear in mind that whether under the old Act or the new Act,
the Court’s jurisdiction over arbitrators and arbitrations is statutory and that
Courts do not have the power of judicial review to regulate or supervise the
arbitral process.
One of the most common complaints by parties who have experienced arbitrations
is the long process the winning party must go through again in court to realize
the sum awarded. Judges should take a robust stance on enforcement of arbitral
awards to discourage unmeritorious parties from delaying and abusing the
processes of Court and bringing the arbitration process into disrepute.
Efficient handling of arbitration cases will also help project Malaysia’s image
and the image of our judiciary in the international arena. Singapore and Hong
Kong have made their mark and are becoming preferred centres for arbitration.
There is no reason why Malaysia cannot do the same.
A major factor considered by international parties when negotiating arbitration
clauses in their contracts is the quality and speed of judgments delivered by
judges in the country which is chosen as the seat of the arbitration and whether
those judgments support the arbitral process. It is thus essential that judges
treat arbitration cases, particularly cases where there is an international
party involved, with some priority and deal with them expeditiously.
Islamic banking, Islamic finance and takaful is a multi–billion dollar business.
Countries, all over the world, Islamic or un–Islamic, are going all out to
attract the overflowing petro–dollars by offering Islamic financial products.
Malaysia is in fact among the big players in the industry. But other countries,
including Singapore and Hong Kong, are catching up very fast. One of the issues
that arise is the competency of the courts in determining the Islamic law issues
arising from such transactions. (Thank God, not many such issues have arisen in
our courts so far.) In Malaysia, the Government had considered the limitations
of the various institutions, e.g. the civil court, the shari’ah court, the
National Fatwa Committee and the State Fatwa Committees and had decided to
establish the Shari’ah Advisory Council at the Central Bank (Bank Negara) for
such issues to be referred to for decision if and when they arise. Islamic law
issues in Islamic banking, Islamic finance and takaful are complex issues. To
determine such issues, knowledge of Islamic law, civil law, conventional
banking, finance and insurance is necessary and, very often, it involves the
exercise of “ijtihad”. It requires a group of experts in the various relevant
fields to sit together, try to understand the technicalities of the product,
identify the parts that may attract “shari’ah issues” before applying the
principles of shari’ah (or fiqh) before arriving at the conclusion, which, very
often, requires the exercise of “ijtihad” by the experts. It not something that
a common law judge or even a shari’ah judge or even an ulama’, citing a few
verses of the Al–Qur’an, can determine.
So, I would urge all of you, if faced with such issues to refer the issues to
the Syari’ah Advisory Committee for a ruling. That is provided by law. For your
information, the setting up of the committee has been internationally recognized
as a positive step in the right direction in which Malaysia is the leader and, I
am told, Pakistan has followed suit and even Saudi Arabia is considering to
follow our example. Besides, Malaysian Government has spent and is spending
millions of Ringgit to make Malaysia the hub of Islamic banking, Islamic finance
and takaful. Let us not spoil it through out ignorance and misplaced confidence.
Brothers and sisters,
In this conference, besides inviting Duli Yang Maha Mulia Raja Dr. Nazrin Shah
Ibni Sultan Azlan Muhibbudin Shah, the Regent of Perak to speak to us, we are
also having a 4–cornered forum consisting of the Judiciary, the Attorney
General, the Police and the Anti–Corruption Agency. The purpose is to enable the
four agencies to interact with each other in order to find solutions to our
common problems in the administration of criminal justice. The administration of
criminal justice is not the responsibility of either of these agencies alone.
Brothers and sisters,
On behalf of the Council of Judges, I would like to place on record our
appreciation for the services of the former Chief Justice, Yang Amat Berbahagia
Tun Dato’ Seri Ahmad Fairuz Bin Dato’ Sheikh Abdul Halim to the Judiciary. I
also extend our appreciation to two other Judges who had retired since the
previous conference, namely Yang Berbahagia Dato’ Azmel Bin Haji Maamor, Judge
of the Federal Court and Yang Berbahagia Datuk Mokhtar Bin Haji Sidin, Judge of
the Court of Appeal. Indeed, we invited them to the conference dinner but,
unfortunately, they are unable to make it. In any event, we wish them well and
hope that they will enjoy their retirement from the Judiciary for a long time to
come. I also take this opportunity, on behalf of the Council of Judges, to
convey our condolence to the widow and members of the family of Allahyarham Dato’
Abu Mansor Bin Ali, former Federal Court Judge. The late Dato’ passed away last
week. We pray that Al–Mighty God will shower His blessings on his soul.
I welcome you all and your spouses to the conference. I hope we will have a
fruitful discussion besides renewing and strengthening our friendship. I hope
you will enjoy your stay even though we did not provide you with much
entertainment this time and I apologize in advance for any short–comings.
Thank you.