The Star
Legally Speaking by Roger Tan
As published in ©The Star on 17 Aug 2014.
Our
judges, regardless of their race and religion, must always be mindful
that they have taken an oath to preserve, protect and defend our
Constitution not for some but for all Malaysians.
I
HAVE wanted to write this for some time – my tribute to the late Sultan
Azlan Shah who passed away on May 28, 2014. Not so much because he had
been reading my column, but rather on two occasions which I had the
honour of meeting him, he had encouraged me to keep on writing.
I
was also troubled that when he passed away, he had not been accorded
the appropriate recognition by leaders of our legal profession of his
contribution to the administration of justice in this country.
This
could be due to some differences with the Sultan’s decision not to call
for fresh state elections when Pakatan Rakyat lost the majority control
of the Perak state assembly in February, 2009. I had at that time
written extensively that the Sultan’s decision was constitutionally
correct.
Interestingly,
the Federal Court’s judgment which subsequently endorsed the
correctness of his royal decision is now being relied upon by his then
most vociferous and sometimes insolent critics in Pakatan Rakyat to
justify replacement of the embattled Selangor Mentri Besar, Tan Sri
Khalid Ibrahim without the need for a state assembly sitting or the
dissolution of the assembly.
Sultan
Azlan belonged to the generation of great Malaysian jurists including
the likes of Tun Mohamed Suffian Hashim and Tan Sri Eusoffe Abdoolcader.
He was, after all, the youngest ever appointed High Court Judge and
Lord President.
Not
many knew that whenever the Malaysian Bar stood up for the independence
of the judiciary, he was always there with and for us.
I
still remember the keynote address he gave at the 14th Malaysian Law
Conference on October 29, 2007; of which I was the organising chairman.
The
conference was held one month after 2,000 or so lawyers walked for
justice from the Palace of Justice to the Prime Minister’s office to
hand over a memorandum asking the government to set up a royal
commission of inquiry to investigate the V.K. Lingam video tape which
implicated the then chief justice, Tun Ahmad Fairuz Sheikh Abdul Halim.
At
that time, the Malaysian Bar was aware that Tun Fairuz was said to have
asked for an extension of an additional six months, allowed under the
Federal Constitution, when he turned 66 on Nov 1, 2007 – the mandatory
retirement age for judges. Needless to say, it was an open knowledge
then that the Bar was dead against this. When my committee and I had an
audience with Sultan Azlan inviting him to deliver the keynote address,
this was made known to him.
In
an obvious act of retaliation, I received a letter from the judiciary a
few days before the conference that judges would not be attending the
conference due to “unforeseen circumstances”.
A
High Court judge from Ipoh who was supposed to deliver his paper had to
pull out in the last minute. Nevertheless, I am grateful that the then
Industrial Court President, Datuk Umi Kalthum Abdul Majid sent most of
the Industrial Court chairmen to participate in the conference.
As
a result, only a handful of senior judges turned up at the opening of
the conference and also the dinner later in the night hosted by then
Prime Minister, Datuk Seri Abdullah Ahmad Badawi. One senior judge who
was noticeably present was the then President of Court of Appeal, Datuk
Abdul Hamid Mohamad who subsequently became the chief justice. He
appeared to be a keen supporter of the Bar at a time when the
relationship between the Bar and the judiciary could be said to have
reached its lowest ebb.
On
my part, I accorded him every courtesy and opportunity being the most
senior judge present to be seated close to Sultan Azlan and the Prime
Minister during the photography sessions and at the dinner.
He
did not appear to me to be upset with the Bar Council and I was
appreciative that he had turned up with the full knowledge, of course,
that he might just succeed Tun Fairuz if the latter did not get the
extension. Hence, his recent criticisms of the Bar Council came rather
as a surprise to me.
In
his keynote address, Sultan Azlan broke tradition and expressed his
sadness over the state of our judiciary then. He also called for
judicial reforms.
For the sake of posterity, the following important excerpts of his speech ought to be reproduced in which he said:
“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.
“Sadly,
I must acknowledge that 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.
“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 judgments 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’.
“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.
“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).
“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.
“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 judgment with our name deleted
could with confidence identify 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.’ ”
No
doubt, he received a standing ovation for his landmark speech. After
the conference, the palace called up the Bar Council Secretariat for
more information regarding leaders of the Bar, and he was kind enough to
confer one of them with a Datukship.
Indeed,
our judges, especially those at the apex court, regardless of their
race and religion, must always be mindful that they have taken an oath
to preserve, protect and defend our Constitution not for some but for
all Malaysians.
If
their decisions especially on sensitive racial and religious issues are
predictable because of their race and religion, then they have failed
miserably to measure up to the standards set by Sultan Azlan and Tun
Suffian. If that is so, then I am afraid issue of race has become the
sine qua non for appointing a judge in this country.
In
this respect, I have written that judicial diversity and meritocracy
should go hand in hand, and a judiciary that does not reflect society’s
diversity will ultimately lose the confidence of that society. (See
Judicial diversity creates confidence, The Sunday Star, Nov 13, 2011)
Singapore
just celebrated her 49th national day and they have already overtaken
us in this regard by leaps and bounds as both their Attorney-General and
Chief Justice are Singaporean Indians – Vijaya Kumar Rajah, 57, and
Sundaresh Menon, 52.
But
sadly in Malaysia, it is an unthinkable thing for any qualified
non-Malay even of exceptional capability to be appointed as the
Attorney-General or the Chief Justice.
Of
course, words are easy compared to putting them into practice. But it
remains my fervent hope that the above wise words of Sultan Azlan will
be a constant reminder to all our judges whenever they dispense justice
in our beloved land.
Similarly,
our judges who sit at the apex court should never abdicate from their
powerful position as the guardians of our Constitution whenever there is
any infringement of constitutional rights in any segment of our
society.
They,
as Abdoolcader once pointed out, must not just stand there and fold
their arms and do nothing; otherwise they might as well “hang their
heads in sorrow and perhaps even in mortification in not being able to
at least entertain for consideration on its merits any legitimate
complaint of a public grievance or alleged unconstitutional conduct.”
> The writer was the organising chairman of the 14th Malaysian Law Conference.
He was responding to Copingo, a coalition of Indian NGOs led by Persatuan Hindraf Malaysia (PHM) leader N Ganesan, that had 
Vell
Paari also said MIC leaders have constantly done their part in
explaining the distribution of the RM540 million, as well as the status
of the allocations made between 2012 and 2013.
"There is no need to waste time and money when the majority is clear on Wan Azizah's side
This
prompted Khalid to call on her to prove her support via a vote of no
confidence against him in the 56-member state assembly.
"It should have been swift just like when it granted audience to Khalid and took whatever he said at face value.
In
view of this, Aziz said the sultan must step in, not to dissolve the
house, but grant an audience to Wan Azizah, who has shown the hard
evidence.
"Palanivel,
is asking for fair share of the common wealth of one’s country a
mistake, is requiring effective correction programmes for the growing
underclass problem in the community a mistake?
PHM is a breakaway organization from the Hindu Rights Action Force group Hindraf led by Waythamoorthy's brother P Uthayakumar.
“If
the police don’t act, people get angry. If the police act, people get
angry. This is where the enforcers need to use their discretion,” he
told reporters today.
Ganesan (left)
said the growth of the underclass among the Indians seems to be
untouched, the evictions of displaced Indian estate workers is happening
even today and there has been no real attempt at a resettlement
programme for these workers.
"But
we hardly hear a whimper from his boss, who like a broken record only
repeats he has spent RM540 million for the Indian community, more than
any prime minister in the history of the country," he added.
The Selangor palace had 
This brought to fore the name of 
In
February, PKR initiated the 'Kajang Move' by triggering the resignation
of assemblyperson Lee Chin Cheh to pave way for a by-election in Kajang
and install Anwar as the MB replacing Khalid.
After
a protracted period, PKR decided that Wan Azizah would be its MB
candidate but Khalid refused to step down, asking his party to follow
"procedures".
