Saturday, February 07, 2009

Constitutional Monarchy, rule of law and good governance

"Under normal circumstances, it is taken for granted that the Yang di Pertuan Agong would not withhold his consent to a request for the dissolution of Parliament. His role is purely formal," said Sultan Azlan Shah in his book Constitutional Monarchy, Rule of Law and Good Governance.

Sultan Azlan Shah in his opening speech at the 14th Malaysia Law Conference in October 2007:

This year marks the 50th year of our nation's Independence. It is also the 50th year of our Merdeka Constitution. Malaysia and its people have every reason to celebrate this joyous occasion as the country prospers as a constitutional democracy with a constitutional monarchy in the form as established by the Merdeka Constitution in 1957.

Not all countries that achieved their freedom at the end of the colonial period are today able to celebrate their independence with pride. Some are under military rule, whilst others have had their institutions undermined or even abolished.

The 50th anniversary of our independence is therefore an appropriate moment for all of us to reflect upon the strength of our constitutional system. As we rejoice in our success, It is important to be alert to the pitfalls of failure if proper regard is not given to our constitutional mechanisms.

We must ever be mindful that written constitutions are mere parchment pieces.

It is important that there must be, in the hearts and minds of those who are entrusted to administer and uphold the constitution, a belief in the values and principles that animate the august document.

I had occasion to observe when sitting in the Federal Court in 1977 that the "constitution is not a mere collection of pious platitudes". I spoke then of the 3 essential features of our constitution. I said:

"It is the supreme law of the land embodying three basic concepts: One of them is that the individual has certain fundamental rights upon which not even the power of the state may encroach.

The second is the distribution of sovereign power between the states and the federation.

The third is that no single man or body shall exercise complete sovereign power, but that it shall be distributed among the executive, legislative and judicial branches of government, compendiously expressed in modern terms that we are a government of laws, not of men."

The prescription that "we are a government of laws, not of men" describes the basic principle that runs through our entire constitution-the principle of the Rule of Law.

The Rule of Law is the defining feature of democratic government. In delivering the eleventh Tunku Abdul Rahman lecture in November 1984, I again defined it as follows:

"The rule of law means literally what it says: The rule of the law.

Taken in its broadest sense this means that people should obey the law and be ruled by it.

But in political and legal theory it has come to be read in a narrow sense, that the government shall be ruled by law and be subject to it.

The ideal of the Rule of Law in this sense is often expressed by the phrase "government by law and not by man""

In a speech delivered in Kuala Lumpur in April 2004, Lord Woolf spoke of the 'rule of law',

"The Rule of Law is the rule by the laws that govern a true democracy.

They are the laws that provide for a proper balance between the protection of human rights and the interests of the State. Laws which an independent and responsible judiciary can enforce to protect all members of society from abuse of power."

The reference by Lord Woolf to the role of the judiciary is highly significant. I wish to state with all fortitude that without a reputable judiciary-a judiciary endowed and equipped with all the attributes of real independence-there cannot be the Rule of Law.

All countries, including those that are totalitarian regimes, have courts. But as I observed previously:

"The [mere] existence of courts and judges in every ordered society proves nothing; it is their quality, their independence, and their powers that matter."

In matters concerning the judiciary, it is the public perception of the judiciary that ultimately matters. A judiciary loses its value and service to the community if there is no public confidence in its decision-making.

In this regard the principal quality a judiciary must possess is "impartiality". Lord Devlin said of "judicial impartiality" that it exists in two senses-the reality of impartiality and the appearance of impartiality. He emphasized that the appearance of impartiality was the more important of the two.

Impartiality also means that judges are not only free from influence of external forces, but also of one another. No judge however senior can dictate to his brethren as to how a decision should be arrived at.

It is of the essence of a judge's character that he must be a person of unquestionable integrity who brings an unbiased mind to his task. Like Caesar's wife, he should be above suspicion.

It is said that public confidence in the judiciary is based on four evaluating criteria. They are:

(1) the principle of independence of the judiciary;
(2) the principle of impartiality of adjudication;
(3) the principle of fairness of trial; and
(4) the principle of the integrity of the adjudicator.

How does our judiciary measure today against these criteria?

Sadly I must acknowledge there has been some disquiet about our judiciary over the past few years and in the more recent past. In 2004, I had stated that it grieved me, having been a member of the judiciary, whenever I heard allegations against the judiciary and the erosion of public confidence in the judiciary.

Recently there have been even more disturbing events relating to the judiciary reported in the press. We have also witnessed the unprecedented act of a former Court of Appeal judge writing in his post-retirement book of erroneous and questionable judgements delivered by our higher courts in a chapter under the heading "When Justice is Not Administered According to Law". There are other serious criticisms.

I am driven nostalgically to look back to a time when our Judiciary was the pride of the region, and our neighbours spoke admiringly of our legal system. We were then second to none and the judgements of our courts were quoted confidently in other common law jurisdictions. As Tun Suffian, a former Lord President of the then Federal Court, said of the local judges who took over from the expatriate judges after Merdeka that the transformation was without "any reduction in standards".

Admittedly society is more complex today and the task of judges may be more difficult then what it was before, but the values I speak of are universal and eternal.

There is no reason why judges with the assured security of tenure they enjoy under the Constitution should not discharge their duties impartially, confidently and competently.

Judges are called upon to be both independent and competent. In these days, judges must ever be mindful that the loss of independence can come from many sources, and not just from the executive. Therefore, judges must piously resist the lure of socializing with business personages and other well connected people. They may discover at their peril that they have compromised themselves in the cases that come before them with the unedifying spectacle of recusal applications.

Nothing destroys more the confidence the general public, or the business community has in the judiciary than the belief that the judge was biased when he decided a case, or that the judge would not be independent where powerful individuals or corporations are the litigants before him.

Confidence in the judiciary may also be eroded where the business community perceives incompetence in decisionmaking.

A judgement in a banking or commercial transaction that is contrary to the established norms or which is incomprehensible in its reasoning is bound to give rise to suspicion and loss of confidence.

It therefore becomes apparent, that our attempts to establish ourselves as a leading financial and commercial center will fail, if we do not have a competent judiciary to decide on complex commercial disputes. In this regard, it is utmost importance that the foreign investor have faith in the competence and integrity of our judiciary.

The international foreign investor also expects a speedy resolution of their cases before the courts. Delays cause a loss of profits to the business community. In the recent World Bank survey on resolution of commercial disputes, Malaysia ranks poorly, 63 amongst 178 economies. A similar report by the US State Department warns American businessmen to be wary of the slow process of adjudication of cases before the Malaysian courts. This is indeed a poor reflection on our courts.

Countries such as Singapore and Hong Kong, who have a similar legal system and who share similar laws, and whose judges and lawyers are trained as ours, are ranked in these surveys as amongst the best in the world (Hong Kong is placed first and Singapore ranks as fourth in the world).

The reason is obvious: these countries have undertaken major reforms in their court structure and procedures and have introduced more efficient and transparent commercial courts so as to attract the foreign investor.

Maybe it is also time for us to consider such changes in our legal system and introduce a strong central commercial court in Putrajaya as in London, with especially trained judges who are familiar with the new and ever changing commercial laws and their developments, so that we too can become the center for the resolution of commercial disputes in the region.

I should point out that mere cosmetic changes alone would not suffice. If we wish to achieve this goal, it is imperative that major reforms are introduced. Many other countries have taken such steps to establish specialized commercial courts.

Recently, the Dubai Commercial Court (where one of our own former Chief Judge has recently been appointed to sit as a judge in this new court), and the Qatar Commercial Court have been established.

I know that judging is an arduous task calling for a good mind and a capacity for hard work. The inevitable consequence of incompetence is delayed judgments and backlog in cases leading to all round dissatisfaction.

Only last week, I read in a latest Malaysian law report that a case of medical negligence involving a death of a lawyer took 23 years to reach the Court of Appeal. Similarly there have been reports that some judges have taken years to write their grounds of judgements involving accused persons who have been convicted and languishing in death row.

Surely, such a situation cannot be tolerated in any progressive nation.

It will also be appropriate for me to say a few words on lawyers.

The administration of justice is not just the role of the judiciary. I had said previously in July 1984 on the occasion of a farewell dinner speech to the Bar Council on leaving office as the Lord President, that there cannot be an independent Judiciary without an independent Bar. I stated further that the judiciary cannot function without legal profession.

This symbiosis calls for a proper understanding of the relationship between the Bench and the Bar. The Bar and its leadership must ensure there is a high standard of integrity and ethics among its members. A Bar that is riddled with bad practices cannot assist the administration of justice.

In this respect the relationship between judges and lawyers must be a roper and correct one. As I have said earlier, judges are supposed to be no respecters of persons who appear before them. This rule applies not only to litigants but also to lawyers. It is not just a matter of prudence and good practice, but fundamentally one of ethics.

As is often said, there are good lawyers and bad lawyers. Whilst the majority of the lawyers discharge their duties as officers of the court with professionalism and dedication, there have been cases of some others who have brought disrepute to the legal profession. There have been allegations against some lawyers that in clear dereliction of their responsibilities, they have either misled the courts, or attempted to choose the judges or courts for their cases to be heard so as to obtain a favourable decision in their client's favour. This is serious interference with the administration of justice and the process of the court.

There is one further important point that I feel compelled to say.

This deals with a judge's quality in decision-making. We in Malaysia live in a multi-cultural and multi-religious society. Our founding fathers accommodated this diversity into our Constitution that is reflected in the social contract, and saw this diversity as strength.

Judging in a diverse society is not an easy task. Judges in many parts of the world face similar difficulties. Those of you who were present at the lecture delivered by Justice Albie Sachs at the Second Tun Hussein Onn Lecture last week will know how the Constitutional Court of South Africa, as the guardian of the constitution, wrestle to arrive at a just decision when dealing with the issues relating to diversity or discrimination.

Judges in Malaysia must be ever mindful that they are appointed judges for all Malaysians. They must be sensitive to the feelings of all parties, irrespective of race, religion or creed, and be careful not to bring a predisposed mind to an issue before them that is capable of being misconstrued by the watching public or segments of them.

I am reminded of the proud accolade of the late Tun Suffian in his Braddel Memorial Lecture in 1982, when speaking of the Malaysian judiciary to a Singapore audience he said:

"In a multi-racial and multi religious society like yours and mine, while we judges cannot help being Malay or Chinese or Indian; or being Muslim or Buddhist or Hindu or whatever, we strive not to be too identified with any particular race or religion – so that nobody reading our judgement with our name deleted could with confidence identity our race or religion, and so that the various communities, especially minority communities, are assured that we will not allow their rights to be trampled underfoot."

I have found it necessary to speak at some length on these matters because it is my earnest hope that the Malaysian judiciary will regain the public's confidence and it will once again be held in high esteem as it once was held.

In conclusion, I wish to say as I have said on previous occasion 'in the judiciary, people place their trust and hope'.

It now gives me great pleasure in officially declaring open the 14th Malaysian Law Conference.

I wish all of you a fruitful and meaning full discussion and exchange of ideas.

Source: mt.m2day.org

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Daulat Tuanku!

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Lessons to be learned from Carlos Ghosn:


"Don't believe what I say;
Believe what I do."

14 comments:

Hamba said...

I didn't bother to read the full "speech". As you say Cakap tak serupa bikin. To think that he was a Lord President of our courts. Takpe, the rakyat will endure the injustice from someone who profess upholding justice. As your majesty told YB Nizar, "Innallah ha ma'assobirin" (Allah the Almighty is with those who are patience). Insyaallah when the time come and justice is served, we the rakyat will say this back to you. "Innallah ha ma'assobirin!!!" right to your face. Allah the Almighty is the true upholder of justice, now and in the hereafter.

Anonymous said...

YES, IDEALLY BUT THEN AGAIN WE ARE NOT BRITISH.

HERE, WE ARE BROWN, YELLOW & DARK-SKINNED. AND YES IN PRACTICE, WE ONLY USE THE LAW OF THE JUNGLE...

SO LETS US BEHAVE LIKE PRIMATE... EAT, DRINK & MONKEY AROUND.

hasilox said...

There is a talk on "human rights & democracy" by the great KIM JONG IL. Limited seats. Pls leave your contact here if you're interested. lol

moo_t said...

Constiution Article 5 Clause 1: no person may be deprived of life or personal liberty save in accordance with law.

The nation has suppress this clause and highlighted those pathetic "rukun negara" that teach NOTHING about independent : seeking the liberty.

A true nation law and rules are mean to protect the people liberty, no otherwise. I don't think any Bolehland royals are able to embrace the liberty which conflict with their interest. ;)

Anonymous said...

too many talk CKOC in malaysia already lah. the more learned person, the dumbest thing we the rakyat should expect from him/her. this time around, the whole family look like CKOC, think like CKOC, souns like CKOC, and hated by their subjects like CKOC too.

bodoh lah... badawi is always smarter after all; no need to be Lord President if want to be smart.

just look at Barrack Hussein Obama enough. look close and near, you see SIHT, look far sighted better!

sinkeh said...

I think the good Sultan has lost the plot.

Jefus said...

reading his speech has become academic. watch what he has done / is doing .... thats where the money is.

Anonymous said...

These days people can really put on a show and give a lot of "convincing" talks. Yet when it comes to real action most often they contradict their own words. I have reservations for people who speak/write well. It's what the person does that counts.

Anonymous said...

Typical football hooligans here. Blame the referee for the lost of the game

Anonymous said...

anon 7.01,

yes sir we love football, esp. the epl...

blame the referee, yes sir we do, the stupid one only!

RaZ said...

Anon 7.01

Thank you. You are just what we Malays need to reaffirm our need for Ketuanan Melayu.

You people here sound like a scorn woman. Semuanya salah. PR aje yang betul. Yang betul-betul salah disini ialah the Bota man, the two PKR boys facing corruption charges and a disable DAP woman. And most of all, all the voters that voted for them. As TDM said before, you get the government you voted for. Padan muka.

Why all the hoohah? After all, if PR managed to get one BN to hop over before, I'm sure they can do it again.

And the Hee woman. Now an independent pledging support for BN? And you think PR had a shaky government in Perak before? The present BN government is in even worse position.

The only reason for PR to get emotional over the change-over is because they fear that more will crossover, oops err resign.

Never trust politicians. BN or PR. I find it very difficult to believe in anyone who claims they want to serve the needs of the people. Who then serve their needs? The government with their measly stipends?

Khalid Ibrahim's excuse of using state funds for the maintenance of his Lexus because he declared it as his official car is lame. The correct way to go about it is to decline the Camry and ask for an allowance to for his Lexus. PR or BN, they all the same.

Let them play their games. Maybe next chapter is when one of the independents break ranks and we can be entertained with another Bota dance.

Encore, encore!

Anonymous said...

STUPID NAJIB, GETTING HIS NEW MAMAK COOLIE FROM PANGKOR GOING ROUND GIVING BRIBE TO THE INDIANS & CHINESE TO SUPPORT HIM.

$100K HERE, A FEW HUNDRED K THERE... GUESS BRIBING ITS THE ONLY WAY FOR THEM TO GET THING DONE.

NAJIB WANT UMNO TO REINVENT?... LOL!

Anonymous said...

Key words here are "Under normal circumstances"...

In this case, not normal circumstances. Let's look at it:

1. There is no anti-hopping law in Malaysia so what the ADUNs did was legal

2. The state constitution states that should the MB lose the "confidence of majority of the state legislative assembly members" then he should tender the resignation of his Exco (which means himself also lah)

The fact that Nizar asked permission for the dissolution of the assembly only proves he has lost the confidence of the majority of the members of the assembly.
Therefore, according to the letter of the law, the Sultan had no choice but to give the running of the state govt over to BN.
You see, normal circumstances would mean something like the PM calling for the dissolution of Dewan Rakyat in order to hold general elections which must take place every five years at least. Those are what you call "normal circumstances". Anything other than that would be abnormal or para-normal or whatever you choose to call it.
I suggest people do not muck around with words. Let the former CJ be. My guess is he is a lot wiser when it comes to the law than 99.99999% of other Malaysians

Yap Chong Yee said...

YAP CHONG YEE, 5a Prinsep Road, Attadale, 6156, Perth,

http://yapchongyee.blogspot.com. Dated
TO,
DEAR Tan Sri Zaki Azmi, Chairman Judicial Appointments Commission

Re : Originating Petition No. D2-26-41 OF 2001 ;
Lim Choi Yin v. McLaren Saksama (Malaysia) Sdn. Bhd

Dear Tan Sri Zaki Azmi,
YAP CHONG YEE, 5a Prinsep Road, Attadale, 6156, Perth,

http://yapchongyee.blogspot.com. Dated 12/2/2009
TO,
DEAR Tan Sri Zaki Azmi, Chairman Judicial Appointments Commission

Re : Originating Petition No. D2-26-41 OF 2001 ;
Lim Choi Yin v. McLaren Saksama (Malaysia) Sdn. Bhd

Dear Tan Sri Zaki Azmi,

I have written to you many times complaining the criminal conduct of Judge Dato Zainon

binti Mohd. Ali, but you have never ever replied nor even so much as acknowledged receipt

of my letters. I have written to you officially and it is only normal courtesy that you at least

reply to my letters as Chief Justice to my complaint that charges one of your senior Judges

with criminal conduct.

Do you not respect the dignity of your office as the Chief Justice of Malaysia ? Do you not

want to prosecute me for publicly charging (because I fax all my letters to all legal

practitioners in KL)one of your senior judges, Dato Zainon binti Mohd. Ali of your COURT OF

APPEAL with having committed several serious criminal offences like aidding & abetting

Perjury, Forgery and fabricating documents etc. ? I too graduated law from the University of

Singapore in 1967 and practised law in Malaysia. I just want you to know that I am no crank !

I have spoken to your Judge Manager Dato Mohd. Raus Shariff on the same complaint. My

wife filed an application to wind up her company but respondents PERJURED & FABRICATED

DOCUMENTS and my wife was refused her application for leave to cross examine respondents

ALTHOUGHT JUDGE ZAINON BINTI MOHD. ALI HAD GOOD REASON TO BELIEVE THAT

RESPONDENTS HAD LIED AND FABRICATED DOCUMENTS; I can prove this charge if I am

allowed opportunity to prove they fabricated those documents.

My complaint is very simple, we(wife & I ) are naturalised Australians and Judge Zainon binti

Mohd. Ali had APPROVED TO RESPONDENTS SECURITY FOR COSTS OF RM.60,000 AND MY

WIFE PAID THIS SECURITY FOR COSTS INTO RESPONDENTS HANDS by the terms of judge

Zainon binti Mohd. Ali’s order (not into court as normal, IS THIS NORMAL IN MALAYSIA ?).

The respondents after having received said RM 60,000, went on to apply for a 2nd order to

strike out said petition AND BY THE BEARD OF JESUS, JUDGE DATO ZAINON BINTI MOHD. ALI

APPROVED RESPONDNTS 2nd APPLICATION TO STRIKE OUT EVEN BEFORE ANY APPLICATION

HAD BEEN MADE TO SET ASIDE HER FIRST ORDER FOR SECURITY FOR COSTS. No Order to set

aside Judge Zainon’s 1st Order for security for costs was ever made. Just like the politics of

Perak there are now two valid and OPPOSING ORDERS; never in the history of the English

Common Law had there been a JUDGE OF THE COURT OF APPEAL RANK to have approved an

order for security for costs and then go on and approved a 2nd order to strike out. This is

awfully shameful !

Quite apart from such NONSENSE, Judge has caused the respondents to retain illegally and

unlawfully my RM.80,000 (Rm.60,000 capital plus RM.20,000 interest accruing up until now. I

am a retiree and I borrowed this security for costs from my daughter at 30% interest/year

compound. It is just nonsense that Judge is allowed to keep my money after having struck

out our petition.

I have spoken to Dato Mohd. Raus Shriff of my complaint twice on his hand phone. I told him

as I tell you that it is just nonsense to ask me to sit on my hands loosing this RM80,000 at 73

years old and soon to meet my maker, What do you expect me to accept that this RM,80,000

is most likely to be shared by Judge Zainon binti Mohd. Ali M/s Lim & Hoh (my wife/s

solicitors,) and M/s Annad Noraini, Solicitors for resondents).
Copy :Malaysian Insider, Tan Sri Alauddin Mohd Sheriff, Datuk Arifin Zakaria and Tan Sri

Richard Malanjum, Judge Datuk Zulkefli Ahmad Makinudin, Tun Abdul Hamid Mohamad,

former Chief Judge of Sabah and Sarawak Tan Sri Steve Shim Lip Kiong,Tan Sri L.C. Vohrah,

Datuk Seri Ainum Mohd Saaid. Dato Mohd. Darus Shariff, Dato James Foong.