April 20, 2008

Judicial Reform Proposal Sufficient?

The following is an excellent analysis of the proposal for judicial reform announced by the PM on 17 April 2008.

The Politics Of Compromise
Malik Imtiaz
Disquiet - April 19, 2008

This setting makes me wonder how to perceive these wonderful promises of judicial reform. I know Zaid Ibrahim and I think he is doing a good job at trying to push for reforms. His efforts strike me as being sincere and aimed more at nation building than politics. If he were the only factor in the mix, I would be heartened and would view the situation optimistically.

However, Zaid is not the only factor nor he is the only player. Neither is the Prime Minister, assuming that he is solidly behind the push for reform. There are those on the cabinet who, in many ways, represent the old guard and for that reason alone may choose to oppose any measure involving acknowledgments of wrongdoing, tacit or otherwise. I note the Deputy Prime Minister’s emphatic rejection of the suggestion that the gesture made by the Government to those judges who were victimized in 1988, was not, repeat, not an apology. This refutation is manifestly inconsistent with Prime Minister’s declaration of a need to make amends. This and the presence on the cabinet of other senior UMNO members who may be nervous about crossing Tun Mahathir, who in these politically treacherous times is now openly acknowledged as being the principal cause of the downfall of the Judiciary, hints worryingly at the possibility that the reform proposals may not gain traction.

The ex-gratia payment and the speech delivered by the Prime Minister fell short of the full vindication that the affected judges, so well versed in the parceling of fault, are deserving off. The payment and speech go someway to beginning a necessary process of truth and reconciliation not only the victims of 1988 but for the Judiciary and the nation. We must credit Zaid and the Prime Minister for that.

Having said that, it must be recognized however that no matter how we characterize the gesture, it in itself does not go far in reforming the Judiciary. Zaid had declared that there were three key aspects to the reform package he was offering Malaysia; the apology, the establishment of a judicial appointments commission and reinstating Article 121(1) of the Federal Constitution to ensure the separation of powers. Of the three, as thing stand, only the first has to an extent become a reality.

The Prime Minister’s declaration that the government proposes the establishment of a judicial appointments commission does not quite hit the mark where the second is concerned, in part because it is for the government to take steps and not to propose. His explanation that this will involve some time as the process has to be worked out is not reassuring in light of the split in ranks within the cabinet. The Prime Minister had in 2005 similarly reassured Malaysians that the IPCMC would be established. We have yet to see it, largely due to resistance from within. The establishment of the National Human Rights Commission (SUHAKAM) took some seven years. If that is what is meant when the Prime Minister says that the process will take time, I am not inspired. I do not know whether Malaysia can take another seven years of the Judiciary in its current state.

The avoidance of any discussion of Article 121(1) in the speech is similarly worrying. The reinstatement of the article as it was prior to 1988 is a crucial step in re-entrenching the separation of powers and re-establishing the judiciary as a bulwark against totalitarian arbitrariness. The Barisan government has time and time again shown us why Malaysians cannot afford to lose the right to seek judicial review. We are largely where we are because the courts felt themselves unable to intervene or, if permitted, were unwilling. The absence of any reference to this key aspect of the discussion further undermines my belief that the Government will actually take concrete steps forward.

Seen from this perspective, it is glaringly evident that the nation is currently caught up in a huge public relations exercise that the Barisan has hinged on the promise of judicial reforms. The public relation campaign does not necessarily of itself lead to the implementation of reforms.

It is for this reason that civil society must keep on pressuring the Government to act and to act decisively. The Pakatan Rakyat should consider tabling a private members bill for the establishment of an adequately empowered judicial appointments commission. All possible avenues to create awareness and force accountability must be explored. The battle has not been won, it has just begun.


April 17, 2008

Judicial reforms to be announced today

In a surprise move, the PM is expected to announce major judicial reforms at a dinner hosted by the Bar Council tonight (17 April 2008). These will include the setting up of a judicial commission for the selection and promotion of judges and the Federal Constitution will be amended to restore the independence of the judiciary. Financial compensation for the sacked judges will be worked out and the PM is also expected to make an apology or expression of regret to the judges who were sacked during the judicial crisis.

The former chief judge Tun Salleh Abas and his three other colleagues in the Supreme Court - Datuk George Seah, Tan Sri Azmi Kamaruddin and Tan Sri Wan Hamzah - are expected to be present when the announcement is made. The two other Supreme Court jurists - the late Tan Sri Wan Sulaiman and the late Tan Sri Eusoffe Abdoolcader - will be represented by their families. Bar Council sources say that opposition leader Wan Azizah Wan Ibrahim and Lim Kit Siang will also attend tonight's event.

Abdullah to unveil judicial reforms today
By Leslie Lopez, South-east Asia Correspondent
Straits Times - April 17, 2008

  • Judicial Commission to appoint judges
  • Greater independence for the judiciary
  • Financial compensation to sacked judges
  • Expression of regret by PM Abdullah

FIGHTING back stiff opposition from his own Cabinet and administration, Prime Minister Abdullah Ahmad Badawi is set to unveil major reforms to the country's much-maligned judiciary.

The reforms will include the setting up of a Judicial Commission that will be responsible for the selection and the promotion of judges. It will also feature changes to the Federal Constitution that will restore greater independence to the judiciary, senior government officials and lawyers said.

The reform agenda, which will be announced at a special dinner hosted jointly by the government and the country's Bar Council tonight, will also see Datuk Seri Abdullah make an expression of regret over the 1988 judicial saga that led to the sacking of the country's top judge.

The government's effort to make amends to the jurists disgraced by the events in 1988 will also include some form of financial compensation, one senior government official involved in the judicial reform plan told The Straits Times on condition of anonymity.

'The amounts are being worked out,' he said without elaborating. Malaysia's once-robust judiciary was dealt a severe blow when it clashed with former premier Mahathir Mohamad in the late 1980s.

That face-off led to the suspension of six Supreme Court judges and the subsequent removal of three of them, including the head of the judiciary at the time, Tun Salleh Abas.

The sackings damaged the integrity of the judiciary, which came under fresh attack again 10 years later during the controversial corruption trials of former deputy premier Anwar Ibrahim.

Shortly after taking office in November 2003, Datuk Seri Abdullah declared that he would push for reforms in the judiciary.

But those efforts were often stymied by his own Cabinet colleagues, who served under Tun Dr Mahathir and were not keen on reforms that could embarrass the former premier, senior government officials and lawyers say.

Even the Prime Minister's move to establish a Royal Commission late last year to investigate a damning video-recording that implicated a prominent lawyer allegedly attempting to broker the promotion of judges was privately criticised by senior members of his own ruling United Malays National Organisation Party.

But last month's stunning election results, which saw the ruling Barisan Nasional lose its two-thirds majority and control of five states, changed everything, close aides of Datuk Seri Abdullah say.

The Prime Minister signalled that judicial reform was his key priority when he appointed prominent lawyer Datuk Zaid Ibrahim to his new Cabinet to push his agenda.

Lawyers and government officials credit Datuk Zaid for convincing the government to bring closure to the controversial events in 1988 and to establish a more transparent system of selecting and promoting judges.

Under the current practice, the country's Chief Judge recommends candidates to the Prime Minister and in the case of senior judicial appointments, the Chief Judge's recommendation must by approved by the Conference of Rulers.

But Datuk Zaid had to fight hard during Cabinet meetings, say senior government officials. There is also some unease among senior judges over Datuk Seri Abdullah's efforts.

Still, lawyers say that tonight's event could boost his battered public standing.

Sources say that the Prime Minister insisted that the six judges who were disgraced by the events in 1988 be present at the dinner where he will deliver a short address titled Delivering Justice, Renewing Trust.

Government officials say that former chief judge Tun Salleh Abas, his three other colleagues in the Supreme Court at the time - Datuk George Seah, Tan Sri Azmi Kamaruddin and Tan Sri Wan Hamzah - have confirmed their attendance.

The two other Supreme Court jurists - the late Tan Sri Wan Sulaiman and the late Tan Sri Eusoffe Abdoolcader - will be represented by their families, the government officials say.

Bar Council sources say that opposition leader Datin Seri Wan Azizah Wan Ibrahim, who is Datuk Seri Anwar's wife, and Mr Lim Kit Siang of the Democratic Action Party, will also attend tonight's event.

'We hope this will bring closure to the 1988 judicial crisis,' said a senior government official involved in the judicial reform plan.

But to some Malaysians it may not be enough.

'An apology or expression of regret would be sweeping everything that happened 20 years ago under the carpet,' said Datuk V. C. George, a former Court of Appeal jurist. 'We need an investigation into the events of 1988 and to expose the conspiracy and its conspirators.'


Mahathir versus the judges

THE 1988 Malaysian constitutional crisis began with a divisive Umno election the year before and ended with the suspension and the eventual removal of the Lord President of the Supreme Court, Tun Salleh Abas, from his seat.

The Supreme Court in the years leading up to 1988 had issued several rulings that irritated the government of then premier Mahathir Mohamad (left), who had narrowly won re-election as Umno president in the bitterly fought poll.

Among other things, a judge had declared Umno 'an unlawful society' in a case brought by disgruntled losing party members.

The last straw for Tun Dr Mahathir came when the Supreme Court ordered the release of prominent opposition leader Karpal Singh from detention under the Internal Security Act.

The premier submitted several constitutional amendments to Parliament, divesting the courts of the 'judicial power of the Federation' and giving them only such powers as Parliament might grant them. He also lambasted the judiciary for their interference.

Tun Salleh convened a meeting of all 20 judges from the Supreme and High Courts in Kuala Lumpur where they agreed not to publicly reply to Tun Dr Mahathir's criticisms. Instead, they wrote a confidential letter to the King and the Malay rulers, expressing their grievances.

The Lord President was subsequently hauled before a tribunal convened by the premier on the grounds of misconduct. Five judges of the Supreme Court who granted him a temporary order against the tribunal were also suspended.

The crisis ended with the sacking of Tun Salleh along with two of the five judges.

April 15, 2008

Anwar claims enough support to form govt

Anwar claims enough support to form govt
The Edge - 15 April 2008

KUALA LUMPUR: Pakatan Rakyat de facto leader Datuk Seri Anwar Ibrahim claimed last night that the coalition now had enough support from Sabah and Sarawak to command a slim majority in Parliament and to take over as the government of the day.

However, he said the coalition was not yet prepared to act on it, as it wanted to be in a stronger position, rather than just having a “slim majority” for the control of government to be “meaningful”.

“We are not in a hurry, but for the first time, we are saying we are ready to govern. My personal view is that we must have a stronger and comfortable majority to do that,” he said.

Speaking to reporters, Anwar said the three component parties of Pakatan Rakyat — PKR, DAP and PAS — needed to form a consensus on who would be prime minister on it forming the government.

Earlier in his speech to a gathering at the Sultan Sulaiman Club in Kampung Baru here, he said the coalition had enough support in Sabah and Sarawak to form the government.


At Kelab Sultan Sulaiman

Videos of the press conference held after the police abruptly stopped Anwar from addressing the crowd of 20,000 at the Kelab Sultan Sulaiman.

Kampung Baru hails 'Ketuanan Rakyat' (Malaysiakini)

Anwar: We have the numbers (Malaysiakini)

Video of Anwar Rally - 14 April 2008

Anwar Returns - Part 1 (mediarakyat)

Links to Part 1-6:

Anwar Rally on 14 April

Massive KL rally marks end of Anwar ban
by Chow Kum Hor
The Straits Times - - 15 April 2008

KUALA LUMPUR - MALAYSIA'S opposition held a massive rally here last night to mark the end of its leader Anwar Ibrahim's five-year ban from holding political office, with him announcing to a cheering crowd his intention to 'take over the government'.

From today, the former deputy prime minister can once again stand for election, bringing him significantly closer towards his long-cherished dream of becoming prime minister.

More than 10,000 people converged at a historic private Malay club in Kampung Baru last night - a reminder to the Barisan Nasional (BN) government about the resurgent opposition which made unprecedented gains in last month's general election.

'We are going to take over the government soon,' Datuk Seri Anwar said during a 40-minute speech.

He said that if the opposition alliance, Pakatan Rakyat, were to succeed in forming the new federal government before he wins an MP post, his wife - now an MP - will become the prime minister.

Pakatan Rakyat is the alliance made up of the Parti Keadilan Rakvat (PKR), Democratic Action Party and Parti Islam SeMalaysia.

It denied the BN its traditional two-thirds majority in Parliament in the March polls and also swept to power in Penang, Kedah, Perak and Selangor states. It also retained control of Kelantan.

At a press conference after the rally, Datuk Seri Anwar drove home his intention to form the next government, a point he hinted at repeatedly in his address.

'I am saying this for the first time. We are ready,' he told reporters.

'Timing is an issue that we have to discuss with the three parties - only when the majority feels comfortable. We have the numbers...we have enough MPs to form the government.'

Last night, he kept emphasising how different races could work and live together, in contrast to the BN's stress on pro-Malay policies.


April 11, 2008

Lest We Forget: The Anwar Trials 1998

The following videos on the Anwar trials in 1998 will jog the memory of many Malaysians including those who have a tendency to forget.

It may be painful to revisit this dark episode of the country's history but it is important for people to understand why Mahathir must never be allowed to dictate the future of the country again.

Part 3

Part 5

Links to Part 1-7:

Lest We Forget: Salleh Abas remembers 1988

The following are private notes taken by Salleh Abas in 1988 after a meeting with Mahathir. The notes were released in 2006 and were made available by Aliran.

In the meeting, Mahathir told the shocked Salleh Abas to resign as Lord President or face a tribunal. Salleh refused to resign. Mahathir then set up a special tribunal which tried Salleh on charges of misconduct and for questioning the constitutional amendments which eroded the powers of the judiciary. Salleh was then sacked.

Two of five supreme court judges who had ruled that the tribunal was convened unconstitutionally were also sacked after being found guilty of misconduct by another tribunal.

When I arrived at the Prime Minister’s Department I was met by a policeman who took me by lift to a waiting room. After waiting for about two or three minutes, I was shown into the Prime Minister’s Office by an officer, whom I did not recognise. There I found YAB Perdana Menteri (then prime minister Mahathir Mohamad) seated at his table with YAB Encik Ghafar Baba, Timbalan Perdana Menteri (then deputy prime minister) and Tan Sri Sallehuddin Mohamed, Ketua Setiausaha Negara (the then chief secretary to the government) seated at the same table opposite the Prime Minister. When I entered the room I gave the Prime Minister and the others my salam very loudly and he replied my salam. (Peace be on You).

After I had taken my seat, the Prime Minister told me that he had an unpleasant duty to perform and on being asked what it was, he replied that he had been asked by (the then) DYMM Seri Paduka Baginda Yang Di Pertuan Agong to tell me that I should step down. I then expressed my surprise in an Islamic way saying “Glory to God, who is free from any partnership.” Then I asked him for the reasons and in reply he said that he was not prepared to argue with me, but finally he said the reason was that I had written a letter to DYMM Seri Paduka Baginda Yang Di Pertuan Agong regarding the state of relationship between the Judiciary and the Executive. I told him that I wrote the letter simply because Judges, at a meeting on 25 March 1988, had informed me that they were very concerned about the present situation and asked to express their views through me. YAB Perdana Menteri then said that I made speeches indicating that I am biased and I am not qualified to sit in UMNO cases. I told him that I said nothing of that and the speeches I had made only dealt with the criticisms levelled at the Judiciary. I am not at all biased or bipartisan in political matters. While all this was going on, YAB Encik Ghafar Baba kept his head down while Tan Sri Sallehuddin was writing in a note book, which he was then holding.

When finally I said I would not resign, he told me that if I stepped down I would be given everything that I was entitled to. I told him that I was entitled to nothing since I was not yet 60. Obviously, he was surprised when told I was not 60 yet. Finally, he said that if I did not step down he would institute a Judicial Tribunal with a view to removing me. I told him I would not resign because if I did, I could not show my face to anyone and I might as well die.

He said that I could see the Agong if I wanted to and he would not stop me from doing so.

I told him that I would not be resigning and he could do what he pleased with me, including going ahead with the Tribunal. As there was nothing else to discuss, I finally said “Datuk, I should not waste anybody’s time”, and I shook his hand, also Encil Ghafar Baba’s and Tan Sri Sallehuddin’s. None of these three looked me right in my face and I could detect Encik Ghafar Baba was strangely silent and Tan Sri Sallehuddin only caught me by the side of his eyes but he too appeared to be subdued.

The Prime Minister himself, from the beginning to the end, did not even look me in the eye. He was looking down at his table all the time.

I left his room and I only saw one policeman outside his room who appeared surprised to see me there. When I went downstairs there was nobody even to see me off and no one called for my driver. I had to go out to look for my driver.

My future is tied up with the fate of this country. I come from an unknown family and I have reached the top of my profession. I have no desire to leave until I have reached the age of 65 like my predecessors, except the Sultan of Perak, who vacated the job because of a call of duty to be the Ruler of Perak. I leave my fate to the judgment of Allah and as it is Friday, I wish to quote the Quran, which says, “No misfortune will fall on us except what has been decreed by Allah. He is our protector and in whom the believers should place their trust.” This passage from the Quran struck my heart as I entered the door of the Prime Minister’s Office and it remained with me during the course of our discussion till the end, and to my exit from his room.

April 10, 2008

The need for a "judicial renaissance"

In an address to the Conference of Malaysian Judges held in Putrajaya on 9 April 2008, Raja Nazrin called for a judicial renaissance at this critical time of the nation's history.

He said, "Malaysia needs nothing short of what I would call a judicial renaissance. Without it, one of the three pillars that hold up this nation will remain in a significantly weakened state. Injustices will continue to perpetuate. Efforts at developing social cohesion and nation building will be severely compromised."

He also pointed out that, "The present climate presents us with an excellent opportunity to press on with much needed changes. We should not seek to just recapture past glories but must strive for greater achievements. Before we can start to soar in the skies, however, we must have a firm footing on the ground. Here, I am persuaded by the many voices that have argued that the most basic first step we must take is to ensure that judicial power is once again vested in the judiciary. The judiciary must be restored to the position that it had in the Constitution from the time of Merdeka until twenty years ago. Unless this is done, the doctrine of the separation of powers, which underscores our democracy, will remain effectively muted."

The full text of his speech is reproduced below.

Raja Nazrin: We are now at a critical time in our nation’s history
The Sun - 9 Apr 2008

KUALA LUMPUR: The Regent of Perak Raja Nazrin Shah says Malaysians are now at a critical time in their nation’s history, one where the institutions of state – indeed, the foundations of our democracy – which we have built up since Independence are under scrutiny.

Here is the full text of his speech delivered at the Conference of Malaysian Judges:

Address by Raja Nazrin Shah, Regent of Perak at the Conference of Malaysian Judges
9 APRIL 2008 at the J.W Marriott Hotel, Putrajaya

Assalamualaikum Warahmatullahi Wabarakatuh

Salam Sejahtera

Bismillahi Rahmani Rahim

Segala puji milik Allah, Tuhan semesta alam; Tuhan yang Maha Mengetahui lagi Maha Adil lagi Maha Saksama, lalu menyeru supaya para hambaNya melaksanakan keadilan dan sama sekali menjauhi kezaliman. Selawat dan salam ke atas Junjungan Besar, Nabi Muhammad Sallallahu Alaihi Wassalam, ahli keluarga dan para sahabat Baginda, serta para ulama dan para Tabiin; semoga memperoleh ihsan di hari kebangkitan.

Beta bersyukur ke hadrat Ilahi kerana dengan izin dari Nya juga, Beta dapat berangkat untuk menzahirkan titah di Persidangan Hakim-Hakim Malaysia pada pagi ini. Usaha yang dirintis oleh Ketua Hakim Negara menganjurkan Persidangan ini amatlah Beta hargai.

2. We are now at a critical time in our nation’s history, one where the institutions of state – indeed, the foundations of our democracy – which we have built up since Independence, are under scrutiny. The just concluded 12th General Elections has ushered in a host of changes. Among other things, it has introduced a greater degree of contestation in policy-making, legislation and administration than many would previously have thought possible. Some of these changes may be transient. Others could well be permanent. Whatever the case, the new political realities have proven to be and will continue to be challenging. They send a clear message that we cannot continue on a course of ‘business-as-usual’.

3. It goes without saying that recent revelations of improprieties in the judiciary have been extremely damaging, not least by eroding the public’s image of, and confidence in, the system of justice in this country. We must be committed to working through our current problems and to emerge the stronger and better for them. In order to do so, we must be prepared to deal with the facts as they are, and not as we would like them to be. In this respect, it is most encouraging that YAA Dato’ Abdul Hamid has himself set the tone for us in his appointment speech in December last year. In that speech, which has been described as "a breath of fresh air", he openly addressed concerns about the impartiality of judicial decisions, the appointment and promotion of judges, and their commitment to carrying out their work. He wisely pointed out that whether or not these perceptions were founded was immaterial. The mere fact that they exist is enough to do damage and warrant firm action.

4. What makes the current low regard for the judiciary especially regrettable is that it was once greatly admired. Judgments made in our courts used to be quoted across the Commonwealth. Our judges were held in high esteem for their wise and fair rulings. The late Tun Mohamed Suffian’s views about the first thirty years of the Malaysian judiciary are well known and often quoted:

"The reputation that [the Malaysian judiciary] enjoys of being able to decide without interference from the executive or the legislature, or indeed from anybody, contributes to confidence on the part of the members of the public generally, that should they get involved in any dispute with the executive or with each other, they can be sure of a fair and patient hearing and that their disputes will be determined impartially and honestly in accordance with law and justice."

5. Reputations can only be maintained if the high standards adopted are consistently adhered to. This has not always been the case. In the last two decades, judicial independence and integrity have eroded. The result is a lack of confidence in the judicial system and the complete disregard for the law by some quarters. These are dark stains on our honour and reputation and they have the potential to weaken if not destroy the nation.

6. Malaysia needs nothing short of what I would call a judicial renaissance. Without it, one of the three pillars that hold up this nation will remain in a significantly weakened state. Injustices will continue to perpetuate. Efforts at developing social cohesion and nation building will be severely compromised. A judicial renaissance is also necessary because it is one of the most important requirements for continued economic, scientific and technological progress.

7. What are the hallmarks of a judicial renaissance? I can do no better than to refer to my father, His Royal Highness Sultan Azlan Shah, whose views on the rule of law, the supremacy of the Federal Constitution, the independence of the judiciary, and the separation of powers are well known. His Royal Highness has written extensively on these subjects and he continues to do so with conviction and passion.

8. At its nucleus is respect for the rule of law, which is a universal ideal. One of my favourite quotes puts this in proper perspective:

"(The) right to be governed by laws and not by arbitrary officials is the most precious right of democracy—the right to reasonable, definite and proclaimed standards, which we as citizens can invoke against both malevolence and caprice."

This quote was taken not from an English or American judge. It was not said in a context that is alien to us. It was made in 1984 by Sultan Azlan Shah, former Lord President of the Federal Court, and to an audience made up primarily of Malaysians. The citizens that His Royal Highness was referring to are Malaysians of all creeds and colours.

9. It is worth repeating that the Federal Constitution is the highest law of the land. It is not only the law to which everyone is subject but also the authority from which power comes. Every judge, Member of Parliament, Cabinet minister, Prime Minister and, indeed, the Yang Di-Pertuan Agong himself, has taken a solemn oath to defend the Constitution. They are not supposed to serve the interests of a particular community alone. They are supposed to uphold the Constitution in its totality. The Constitution was specially crafted to cater to the pluralistic character of this country. This is not to say that it is a perfect document. It is not. It was forged out of the necessities of the time. Many of these, however, are still relevant today and Malaysians would do well to bear this in mind whenever they amend or interpret the Constitution.

10. Each time an administrative decision is taken that runs contrary to its provisions, the Constitution is in danger of being deemed irrelevant. This is why it is absolutely critical for judges to be sensitive to the spirit that underlies the Constitution. It bestows and protects the rights of all citizens and provides a basis for peace and harmony among them. Without it, we are in danger of heading down the path of sectarianism and victimisation. The courts must therefore be thoroughly objective and uncompromising on constitutional questions. In doing so, they are not only upholding justice but also strengthening the process of nation building and the integrity of the state.

11. Let me now turn to the second reason why we need a judicial renaissance. There is demand everywhere today for good governance. Unpacked, this means that the three pillars of government must not only be efficient but also highly responsive and accountable. Society and needs have become ever more complex. Citizens have become more educated. Borders are now more porous. Human capital and financial capital are mobile as never before. If good governance is not forthcoming in one country, then the best and brightest, and investment, will move to where it is forthcoming. The old model of large and rigid bureaucracies handing out government largesse has also become outdated. And governments can no longer just offer their citizens material wealth. The intangible benefits of development, including an absence of corruption, abuse and repression, and the protection and enlargement of individual rights and freedoms, are now equally important goods that citizens demand and which governments must deliver.

12. It would be wrong to think for one moment that Malaysians can achieve great things without a properly functioning judiciary. The most politically stable and economically successful countries are ones where the law matters a great deal and where the judiciary is highly respected. We must not be fooled into believing that to be monetarily rich, only practical expediency matters and that judicial integrity and independence do not. I say ‘monetarily rich’ and not ‘developed’ because there is a very big difference between the two. I do not believe it is possible to be developed without a highly respected judiciary.

Honourable judges:

13. The present climate presents us with an excellent opportunity to press on with much needed changes. We should not seek to just recapture past glories but must strive for greater achievements. Before we can start to soar in the skies, however, we must have a firm footing on the ground. Here, I am persuaded by the many voices that have argued that the most basic first step we must take is to ensure that judicial power is once again vested in the judiciary. The judiciary must be restored to the position that it had in the Constitution from the time of Merdeka until twenty years ago. Unless this is done, the doctrine of the separation of powers, which underscores our democracy, will remain effectively muted.

14. Until judicial power is reinvested in the judiciary – in much the same way that executive power is invested in the Yang di-Pertuan Agong and the Cabinet , and legislative power in Parliament – it will be difficult to convince anyone, not our citizens and not the world community, that we are a nation governed by the rule of law. Judicial review of administrative practices is an essential aspect of being a nation of laws. With the positive mindsets now in place, I am sure that the executive and legislature will continue to view the judiciary in a proper and balanced perspective. The judiciary, filled with men and women of great insight into the law will, I am confident, exercise its oversight to ensure that the exercise of power is not exceeded, that correct processes are adhered to and that outcomes are just.

15. The courts have unfettered powers to interpret the Constitution, to construe laws, and to declare any law or administrative action that is inconsistent with the Constitution to be void. We seem to have forgotten that the judiciary can be a powerful and constructive force in nation building. For laws, once enacted, are sterile unless they are properly interpreted. The courts have the responsibility for ensuring precisely this. Preserving and protecting the Constitution require judicial courage. Judges need to display the necessary courage when interpreting our supreme law, the Constitution.

16. Second, an important feature of a judicial renaissance is that only men and women of the highest integrity and intellect are elevated. The appointment of Tan Sri Malek as President of the Court of Appeal in 2004 was a step in the right direction and, as observed by the President of the Malaysian Bar Council, Ms Ambiga Sreenevasan, a "much needed shot in the arm for the judiciary". The many tributes bestowed at his untimely passing are proof of the high regard in which he was held. I know there are many men and women of integrity and intellect present here this morning who have dedicated their lives in upholding the sanctity of the law and in dispensing justice without fear or favour. Some of you have gone through difficult times. You have discharged your duties with great dignity and pride. For this I join the many others in saluting you for your dedication and commitment. You have done this nation proud. Your continued contribution and service gives great hope and impetus for the future of the judiciary.

17. Third, it may also be an opportune time to review the way judicial appointments and promotions are made. The many calls for a more transparent mechanism, one that is in line with other developed countries, should be given serious attention. There is merit in the suggestion for the establishment of a Judicial Commission that will make recommendations to the Prime Minister who, in turn, consults the Conference of Rulers. On the latter point, I am happy to note that in recent years, there has been a greater willingness on the part of the Prime Minister to consult the Conference of Rulers in a meaningful way. This is very much in keeping with the spirit of the Constitution and, I believe, leads to the building up of further confidence in the judiciary.

18. Fourth, it may also be the right time for the Federal Court to take a less restrictive approach in reviewing judicial decisions that manifestly involved miscarriage of justice. There is no denying that some decisions of the apex court in recent years have caused great concern to the legal profession, businesses and the public at large. We should not allow these decisions to remain in our annals. I am aware that the principle of finality of decisions is vital in any judicial system. Litigants are entitled to arrange their affairs in the sure knowledge that there is an end to their litigation upon decision of the final appellate court. But justice must be the overriding objective. The attainment of justice and the rectification of gross injustice is the raison d’etre of any civilised legal and judicial system. I am confident that in a judicial renaissance the proper balance between finality and justice will be maintained by His Majesty’s judges.

19. Fifth, it may also be the time to introduce mechanisms so as to facilitate the acquisition of knowledge by judges to meet the growing global challenges in specialised and new areas of the law such as Internet and Information Technology, Maritime and Arbitration, and in the more traditional subjects like Constitutional Law and Human Rights. The importance of continuing legal and judicial training cannot be over-emphasised.

20. Sixth the establishment of a commercial court with specially trained judges may be an area worth considering. As an example of how seriously this matters in today’s world, consider the case of Dubai. The civil and commercial court at the Dubai International Financial Centre has been in operation since 2004. Early this year, six new appointments of illustrious international judges were made to give it further standing and credibility. Sir Anthony Evans was selected to be the Chief Justice, alongside five others. Among them was Malaysia’s own Tan Sri Siti Norma. In addition to being the only Southeast Asian, she is also the first female judge in the United Arab Emirates. She is another clear example of Malaysia’s ability to produce judges of world-class ability and reputation.

21. Similarly, this year, the government of Qatar appointed Lord Woolf, former Chief Justice of England and Wales, as President of its Financial Centre’s civil and commercial court. At the same time, it selected another eminent Briton, William Blair QC, as Chairman of the Regulatory Tribunal. It further appointed eight other distinguished international jurists and lawyers to serve in both these institutions. Qatar’s rationale was simple: International financial and commercial organizations must be satisfied that the financial centre upholds the rule of law.

Honourable judges:

22. Jurists like yourselves are the real soul of any legal system. You are its true substance and the rest are mere decoration. We should never mistake form for substance. Some of the most tyrannical regimes have complex laws, batteries of judges and lawyers and palaces of justice, complete with grand regalia and ceremonies. These are all mere symbols meant to give a thin veneer of legitimacy to illegitimate and unjust practices. They say absolutely nothing about the substance and quality of the justice that is meted out. Laws can be made that institutionalise prejudice and biasness. Courts can make decisions that violate the very principle of natural justice.

23. Of course any problem can be ‘solved’ in the abstract. While we relentlessly pursue the ideal of justice, we must inoculate ourselves with heavy doses of realism. We must be aware that efforts to compromise legal principles and undermine judicial independence and authority are virtually universal. There is a perpetual contest between the political executive and the courts everywhere. There is constantly a threat of business interests tipping the scales of justice in their favour. Our efforts cannot therefore be partial and half-hearted. They cannot last mere months or even a handful of years. No matter how great the legal institutions we build, once we stop maintaining them, the surrounding jungle of abuse will start to reclaim them.

24. The rule of law, the independence of the judiciary, and the separation of powers are features of our judicial system that we must constantly and tirelessly struggle to uphold. Even in England, the birthplace of the law that Commonwealth countries practice, measures are still being undertaken after more than nine hundred years to improve the autonomy, competence and transparency of the judiciary. We cannot be faulted for not having a perfect legal system for no country can make that claim. We can, however, be faulted for want of trying. The judicial renaissance that is emerging must therefore not be allowed to roll back. We must constantly fuel the engines of this renaissance.

25. Change is never easy. Resistance must always be assumed. The inertia of the status quo is very strong and this is especially true when the situation is serious and the changes required are huge. There will be the ever-present temptation to undertake just incremental and cosmetic modifications. We need to recognise that these are not sufficient for the judicial revitalisation and renewal that this country needs and deserves.

26. I mentioned at the outset that as recent events continue to unfold, the degree of political contestation in this country will increase. Some will be for the better and some, where it leads to conflict, will be for the worse. Whatever the case, this is the system that we chose for ourselves five decades ago and which has proven and performed with distinction in the past. In the current environment, the opinion and decisions of men and women of reason, wisdom and balance in all spheres of life will be in even greater demand than before. This is especially true of the courts of law.

27. If the judiciary is filled with the highest calibre of men and women that this nation has to offer, not only in terms of ability but also values, there is nothing to fear. We must never fear truth, knowledge and wisdom. We should always fear their opposites. I therefore urge you to press on. May the judicial renaissance grow and flourish under your careful hands and watchful eyes.

28. Semoga Persidangan ini dapat berlangsung dalam suasana berterus-terang berlandaskan semangat mahu membina imej dan perkhidmatan kehakiman yang berintegriti tinggi, agar para hakim dan mahkamah di Negara ini mendapat kepercayaan rakyat jelata serta dihormati diperingkat antarabangsa.

Wabillahi taufik walhidayah

Wassalamualaikum Warahmatullahi Wabarakatuh.

April 6, 2008

Lest We Forget V

Tunku Abdul Aziz: It's time to close ranks and get on with job
NST - 6 April 2008

Tun Dr Mahathir Mohamad's role in the clamour for Abdullah's political demise is sad and pathetic for a man who should be helping to heal the wound and in the process ensure that Umno would rise quickly to political eminence once again as a real party of the people with all that this implies.

Instead, he chooses to camp outside the castle wall shouting invectives and taking one pot shot after another at his hapless successor who is trying to mend the fences and get on with the job.

Dr Mahathir over the last few years has emerged and become widely known as someone with a highly developed selective memory, if not amnesia itself. He has forgotten that he picked Abdullah because he must have believed that his erstwhile deputy was the right man for the highest public office in the land.

If Dr Mahathir now believes that he had in the event made a wrong choice and Abdullah has not been dancing to his former master's discordant music, it merely confirms that Dr Mahathir is a bad judge of people.

Musa Hitam and Anwar Ibrahim, too, were given short shrift, and in the case of Anwar, that is putting it mildly. But, then, Dr Mahathir chooses not to remember.

Dr Mahathir, the wily political street fighter, has apparently not lost his penchant and flair for controversies. He has always thrived on crises, and as someone remarked to me the other day, "if there was no crisis, he would waste little time in inventing one".

The most dishonourable of his innumerable crisis machinations, perhaps intrigues would better describe his actions, was the shamelessly orchestrated "constitutional crisis" against the sultans when he was at the height of his absolute power, and craving more.

He was tireless, verging on the maniacal, in his abuse of the media to demonise our constitutional rulers who had no means of defending themselves.

For him, in this as in other cases, including the "judicial crisis" in which the lord president and a number of senior judges became victims of his cruel, unethical conduct, the end always justified the means.

He now expects the world to accept his callous statement that it was the tribunal that should be blamed, not he whose hands are whiter than white. Dr Mahathir is so confident of his "cleanness" that he has issued a challenge for him to be investigated for corruption and other acts of wrong doing.

My advice, in all seriousness, is not to tempt fate as it could be a self-fulfilling wish. I find all this "wayang kulit" a little rich even for my cast-iron stomach, but I am prepared to use my international network to form an independent investigation team to look into one or two of the most outrageous revelations of abuse of power that are in the public domain. Just say when.


Lest We Forget IV

The Edge says Dr M at centre of Umno’s many problems
Malaysian Insider - 5 April 2008

The Edge has waded into the political battle between Prime Minister Datuk Seri Abdullah Ahmad Badawi and Tun Dr Mahathir Mohamad, urging Malaysians not to forget that many of the problems facing Umno and Malaysia happened under the former prime minister’s watch. This article could set the tone for a weekend of fireworks.

Abdullah is scheduled to speak to party members tomorrow and will list down the reasons for Umno and Barisan Nasional’s reverses in Election 2008. He is also being urged to address many of the accusations levelled against him by Dr Mahathir.

Earlier in the day, Dr Mahathir will address another Umno gathering. He will continue to demand for Abdullah’s resignation. He may also have to respond to some of the points raised by the Edge and one of its writers.

In an editorial headlined “Lest We Forget”, the influential financial weekly said that despite Dr Mahathir’s selective memory, he cannot absolve himself from the sacking of the Lord President and two other judges in 1988. Nor should he forget that it was he who put in place the rule that anyone who wants to contest the party president’s position must receive nominations from at least 30 per cent of the divisions.

The paper said that contrary to assertions by the former PM, Umno tends to have a crisis every 10 years. There was the quarrel with Musa Hitam, the jailing and sacking of Anwar Ibrahim and now he is attacking Abdullah.

“Three crises in three decades and the central figure in each of them is Mahathir. Mahathir ‘mudah lupa’ but we hope the rest of the Malaysians will not forget that easily,‘’ said the editorial.

The paper upped the ante in an accompanying article. Its writer noted that Dr Mahathir challenged the authorities to get foreign agencies to investigate him.

“Perhaps it is high time Abdullah called his bluff and launched an international investigation into all the alleged misdeeds of Mahathir during his 22 years in office, with Datuk Seri Anwar Ibrahim as his first key witness,‘’ said the writer.

It is unlikely that Abdullah will order any investigations into the Mahathir era. Throughout his political career, he has not exhibited a ruthless streak or a willingness to get down into the trenches and fight. Tomorrow, he may aim some barbs at Dr Mahathir but it will fall a long way short of what his supporters want him to do.

It is also unlikely that Dr Mahathir will lose any sleep after being painted as a hypocrite by the Edge. Throughout his 22 years in office, he has shown an unerring ability to stay on message.


April 1, 2008

Emergence of Pakatan Rakyat (People's Pact)

It's official. It's historical. Opposition forms coalition
Malaysian Insider - April 1 2008

It's been floating around for some time now and Anwar Ibrahim has spoken about it to various media, but today it is official, he announced at a news conference that Malaysia's opposition parties have agreed to enter into a formal coalition, called Pakatan Rakyat (People's Pact).

The de facto leader of the opposition, whose wife Dr Wan Azizah will be the formal Leader of the Opposition in parliament, said the move to have a formal coalition is to present the parties as a credible alternative to the present ruling government coalition, Barisan Nasional.

A convention of all Pakatan Rakyat elected representatives of Parliament and State Assemblies will be held the 27th of April, 2008

This ushers in the era of a two-party system into Malaysian politics for the first time in its history.

The PKR-PAS-DAP group has proposed strengthening ties by forming Pakatan Rakyat, pending the agreement of the respective parties, said Anwar.

He dismissed the long-held position of Parti Islam SeMalaysia, or PAS, on making Malaysia an Islamic state as non-issue. Malaysia's opposition has been divided for many years on separate philosophies, with two parties , PKR and DAP appealing mainly to urban, liberal voters and Islamist PAS attracting mainly rural votes.

The 3 parties have tried before to form a coalition with a single policy platform, during an election campaign in 1999, calling themselves the Barisan Alternatif. But the pact fell apart two years later over the issue PAS's call for the creation of an Islamic state.

Anwar said the parties were still working on a common policy platform, and detailed policy steps would be hammered out at a meeting of parliamentary and state assembly deputies of all 3 parties on April 27. He insisted that PAS's stand on an Islamic state would not sink the new alliance.


Lest We Forget: Mahathir's Misdeeds III

The following is a letter addressed to Mahathir found on SUSAN LOONE’s blog which is worth sharing widely.

By Jayashanker Rajagopal
SUSAN LOONE’s blog - 1 April 2008

Dear Tun Dr Mahathir,

My first impression when I read your letter – Dr M speaks up on Rulers and politicians – The Sun 28/3/08 – was - wow, what an irony.

Perhaps the irony of all ironies.

The jury’s out, and you still want to justify yourself before the masses.

What does it take, for you to admit, the role you played in bringing Malaysia to the depressing state that it is today - politically, socially, morally and economically? (Though the recent GE has at least offered hope- nevertheless the road ahead is still long).

What does it take for you to admit, YOUR faults?

The lame excuses offered in your letter – Even other accusations against me, including the dismissal of judges, were not my doing and I do not feel obliged to apologise. Ask the Tribunal to apologise.

Really Tun, and you would have us to believe that you were just a passive by-stander when this nation’s bastion of justice was being flushed down into a black hole? In any event, why moot the notion of an apology, unless something wrong was committed? If yes, why did you, as the paramount leader, do nothing? To clear its good name, the Government should get credible foreign agencies to do… investigation.

This, coming from an individual who bedevilled foreigners in his days. In any event, can they also pull out files from your time in office? Of course, if such an imaginary course of action was ever possible, I can just picture your response – “ I can’t remember”, or “it’s my prerogative”…. “I am aware that people are looking into possible misdeeds by me during my 22 years …..So far they have not found anything”.

Well Tun, perhaps it’s because these “people” haven’t gone very far yet….but then, what do you think the VK Lingam tape episode is all about?

Tun – are you really upset because of Badawi’s ineptness, or are you acting that way because Badawi cancelled your pet projects, and as a result, your cronies couldn’t get a hold of the hand-me-downs which you would have promised them during your reign? What kind of road show are you putting up here? To get sympathy from the masses? Wouldn’t it be easier if you just apologised?

I sincerely doubt, as do many Malaysians, that this re-birth of Malaysia would have been possible if you were still in power today. Here you are, a trigger happy man when it concerns Badawi and his ilk. However, convenient ignorance is the order of the day when it comes to your own misdeeds of the past. Alas, for these things that you whack Badawi for, bear very much, the finger prints that you had left in your 22 years of being the nation’s Chief Executive.

Many are critical of Badawi at this point, and rightly so. But was it Badawi who created the rot? Or did he inherit it before he himself went on to tinker with it? How could he have created it, in the four short years that he ruled? And yet Tun, you would aver to have us believe, that you are as innocent as a blue-eyed, sweet-dimpled baby in the evolution of all things wrong in Malaysia. Let me list it out:-

* The rot of the Judiciary
* The muzzled and impotent mass media
* The demonising of a valid Opposition and the tactical use of the May 13 fear to augment it.
* The suppression of basic civil rights - it wasn’t Badawi who started the practice of gassing the nation’s people who exercised their right to peaceful public demonstrations.
* The ISA and Operasi Lallang.
* The use of racial politics to rule and divide.
* The corruption that is the civil service today.
* The loss of billions of ringgits - this practice too, wasn’t started by Badawi, even though he certainly raised the bar! Let’s recap :-

MAS, UEM, MRCB, Renong, Proton, Perwaja, Bank Bumi, the E-Village, Paya Indah Wetlands, MSC, Cyber-jaya, the Putrajaya development which today, is a certified loss, the 1998 Commonwealth Games, the purchase of MAS shares by EPF at higher than market price, the so-called “paper” loss of billions through FOREX & Tin Futures Trading, the rise of money politics in UMNO and BN, toll concessions that burden the rakyat, lop-sided agreements with Independent Power Producers, the issuance of APs, the mis-allocation of Bumi shares/contracts/scholarships etc. to relatives of Ministers and leacherous hop-on political riders, extravagant projects that provide nothing more than gloss when measuring national achievements, and so on and so forth.

And just where do we conclude this list?

You were definitely better than Badawi at controlling various situations in the country; but fear and an iron fisted approach was the lead course of action, in order to make it work. You are the consummate political chess grandmaster - a political Bobby Fischer, if you like - gifted with an impecable sense of timing. As it is, you are still trying to maneuver what little pawns you could find on the board today - albeit limited in your moves - very much like a Bobby Fischer coming out of retirement.

Where does the buck stop? When Watergate was uncovered, it went all the way to Nixon, and the President took responsibility, as Chief Executive, and resigned. But you, dear Tun, despite clear, irrefutable evidences that lead all the way to your door step, still plead innocence, or amnesia, or powerlessness, or “its-my-prerogative” type of response.

Where did Badawi and the UMNO - ites of today obtain their “ilham” to carry on business as usual?

Wasn’t it you, who confronted the Rulers on their powers and later went on to curtail it - seen through the Constitutional Crisis of the 80s? So why is there so much of fuss when it comes to the drama that unfolded in Terengganu the past couple of days? Didn’t you create this constitutional ambiguity?

If you were still in office, we wouldn’t have had this much freedom in voicing our opinions today. And I would be hauled by the Special Branch for daring to suggest these issues. Let’s give Badawi that much credit, please!

Do you think that Malaysians are so naive so as to think that the various branches of the Executive, the Judiciary, and the Police were acting on their own volition without following the operating guidelines “established” by Putrajaya during your time?

Let me give a you piece of advice - Malaysians are a forgiving lot, really. And all you have to do to earn that justifiable measure of respect on your epitaph is to apologise.

I think no one is going to get vindictive if you do that - sincerely. Remember, Nixon did get his pardon.

In any event, all this was your dilemma to begin with.

8 March 2008

A New And Better Malaysia

Has Emerged