Thursday, November 13, 2008

The Evolution of The Malaysian Judicial System

Hi everyone,

First and foremost, I'm sorry for taking quite a long time to share with all of u about what i got from the Seminar that I attended on 23rd August 2008 which conducted by MMU Law Society . I had to make some reading and a bit of research to make me really understand the objectives of the seminar. There were 3 speakers involved which were Prof. Dr. Shad Saleem Faruqi, The law Lecturer at UiTM who talked about "Contributions of the Judiciary to Malaysian Constitutional Law" while Prof. Dr. Abdul Aziz Bari is one of the Law Lecturer who is quite a well-known name to law student and legal practicer outside there because he is also a law books writer especially in constitutionals law . He discussed about "The Changing Role of the Judiciary". Last but not least, Dr. Ahmad Masum who is one of our beloved Consti. Lecturer in MMU talked about "Future of the Judiciary". YB Senator Datuk Zaid Ibrahim was also invited to make a keynote address for the "Visions on Judicial Reform".

Datuk Zaid Ibrahim

Full Text of the speech delivered by Minister in the Prime Minister's Department Datuk Zaid Ibrahim at the Malaysia Multimedia University yesterday.

I MUST apologise for saying upfront that I will not be so bold as to declare that since we have the three arms of government -- the legislative, the executive and the judiciary -- therefore, we practise the separation of powers doctrine.

Separation of powers is desirable only if we believe that power corrupts, and that a concentration of power in the hands of a few increases the risk of abuse. Hence, the need to provide for checks and balances where power is concerned.

At the same time, many people believe that power need not be diluted since one needs a strong central power to implement policies considered to be of national interest. There is a large group of people who subscribe to this view.

I presume since you are all interested and well versed in the law, so you belong to the category of people who subscribe to the need for separation of powers in the political system of the country.

I, too, share this view, but for Malaysia to be truly on the road to democracy and the rule of law, we need many more people to believe and to work towards the implementation of this principle.

Before we discuss about the judiciary and all the changes we want to see happen in this institution, let us talk about the law first.

Without laws to apply, of what use do we have of the judiciary? Many people say they want a government of laws but they do not appreciate what it means. A government which is mandated by the people's will must be ruled and governed by the rule of law.

But laws must be applied to all and sundry with no exceptions, otherwise there is no rule of law, instead we have an arbitrary rule dictated by whims and fancies of some.

Laws and rules must be clear, otherwise arbitrariness sets in the application of the rules.

Let's say we want to organise a concert featuring Indonesian dangdut singer Inul. We have to apply to an authority and comply with the rules. But the rules have to be clear, otherwise some people will present vague terms like morals and sopan, which are subjective and difficult to define, as reasons for rejecting the application.

Once the approval is given, the government should not review its decision just because some Pas members threaten to demonstrate. If we relent, then the government will be vulnerable to mobs who will protest whenever they do not approve of an activity or concert or consider it inappropriate. Then we will have mob rule, and not rule of law.

If we believe in the rule of law, then we also must understand that we must be prepared to defend the principles established under our laws.

When the Bar Council organised a conference to discuss the implication of conflicts of laws in marriage and divorce where one spouse converts to Islam, they were bombarded with threats and physical abuse.

Where does the law of our country sit on this issue? Is the organisation of such a forum which covers such topics a violation of the law?

If so, then the council should be taken to task and action should be taken against its officers. But if what they did was undesirable or stupid, or lacking in good judgment, then advice would be sufficient.

But if what they did was within the confines of the law, then in the ideal world the law would be enforced to defend their rights.

If the police were seen to be defending those who were out to stop a legal and legitimate activity or discussion, then do we uphold the law by doing so?

Racial abuses, inflammatory statements that Islam was under attack and the climate of fear that would be created were raised in defence of their actions.

Again, they succeeded in stopping the forum. Again, the mob was successful, because the police once again decided that the Bar was the culprit. So what is the future of the rule of law in this country?

For your information, action against the council's forum is not necessary because the government has drawn up laws to address the issues raised when one party to a civil marriage embraces Islam.

A myriad of jurisdictional and conflict of laws issues have been examined. Laws to address the issue of custody, maintenance and other relief arising of that marriage have also been drafted: amendment to the Law Reform Marriage and Divorce Act 1976, the amendment to Islamic Family Law Wilayah Persekutuan 1984, and the Administration of Islamic Law Wilayah Persekutuan 1993.

These amendments will hopefully resolve the issue of divorce, custody and maintenance where one spouse has converted.

These laws are in the final stages of review. These amendments will hopefully resolve the issue of divorce, custody and maintenance where one spouse has converted.

The attorney-general has done a marvellous job chairing a special committee comprising officers from Jakim, civil lawyers, syariah lawyers, representatives of muftis, Islamic scholars and law professors and representatives of other religious faiths and political parties.

These compromises and discussions between groups took more than a year before agreement was reached.

This episode goes to show that Malaysians of all faiths can sit down and discuss issues and find solutions to problems of the people. It shows that Islam, if left to the real scholars and experts, has the flexibility and capacity to find solutions to all problems.

The tragedy of our time is that Islam has more often been used by politicians and rabble rousers.

We do not need self-declared champions of Islam to storm meeting halls and disrupt proceedings; or to increase the level of hatred among races . These people are not capable of understanding and empathising with the real problems the people are confronted with.

So they have no business declaring that they were demonstrating in and defending God's name. A true believer must be prepared to find solutions to people's problems and fight for justice for all. A good Muslim should know that.

Now about the courts. Judicial reform means that justice must be available freely and easily to the people. The court system must facilitate that. People should not be asked to wait many years to get justice. We all know that "justice delayed is justice denied".

More importantly for me, judicial reform means that the judiciary must be independent. It must be insulated from pressures, from directives and people cannot and should not be allowed to bring their influence to bear on the courts.

Whoever sits on the bench must be of unquestioned integrity and ability. The selection process of judicial appointees must be transparent, systematic and open.

Restoring confidence in the judiciary is one of my priorities. It not only sounds good; it is good for the country in many tangible ways. Studies all over the world have shown that people do not invest in a country where they do not have faith or trust in the legal system.

Hence, it makes business sense to have a credible judicial system. We have to convince people that a system that operates under a shroud of secrecy is not good for risk management and optimum operations of the economy, and for the government itself.

More importantly, we need a mind-set change. Young people like you must not perceive judicial reform and judicial change as undermining some cherished political foundation. There are some people who perceive the change as limiting their powers and these people always fear that they will be made worse off by the change.

Some are made to feel that the more opaque the system, the more secure they feel. Therefore, they feel threatened when we say we want openness and processes driven by transparency.

Judicial reform and law reform are intertwined. The courts, as an institution in the pursuit of justice, does not operate alone. If we want to reform the law and the justice system, we also need to reform the police and the office of the attorney-general.

How the police exercise their powers of investigation; how the public prosecutor makes his decisions to prosecute or not to prosecute; how transparent and accountable the office of the public prosecutor or attorney-general is; what benchmarks are set by the police and the A-G are all processes which are part of the justice system.

The reforms I have in mind will include reforming the Attorney-General's Chambers.

The police are the mother of law enforcement and the exercise of their enforcement powers must be fair, professional and in accordance with the dictates of the law.

Any negative perception must be removed. Public complaints must be handled properly, devoid of any semblance of abuse of power.

The setting up of a commission has been suggested by the Royal Commission chaired by Tun Mohamed Dzaiddin Abdullah.

The prime minister has also agreed that a special complaints commission be established and it is one of the things in the pipeline for law reform.


Legal practicer to be ~ InsyaAllah

I'm going to summarize it at all according to what I've done for this and a little from my own opinion.

The judiciary occupies a central place in the constitutional set up of the land. Judges are essential part of the system of checks and balances that is put in place to prevent abuse of power. Take note that before the judicial intervention in what had happened towards the case of Tun Salleh Abas, judicial powers are vested in the hands of the Judiciary. But, after the incident the judicial power are gone to the hands of Parliament. The matter is the courts should not be seen as a mouth-piece of the executive. The judiciary must be secure from undue influence from both the public and private sectors. Judges must be autonomous in the performance of their judicial function. The important thing what I'd addressed just now that there should be a high degree of public confidence in the integrity and impartiality of the judiciary. So, judiciary MUST hold the judicial power itself by not being interrupt from other branches.

In Malaysia, we do practiced the principle of Separation of Power between the 3 branches. But, we followed the liberal sense which mean that let there be overlaps in function and membership between the legislature, the executive and the judiciary but on condition that there should be checks and balances between the institutions. Montesquieu had claimed that if all three powers were held by the same person, then there would be the dictatorship and arbitrary rule would prevail. If this doctrine is strictly followed, it means that no one of three branches of gov. can participate in any functions of the others or belong to the others.

To maintain the sovereignty of our Judiciary, we must follow the separation of power in strict sense. There is a clear demarcation of functions between the legislature, the executive and the judiciary in order non-should have excessive power and there should be in place a system of checks and balances between the institutions. According to the approach by Montesquieu, three organs of the governments which includes legislative, judiciary and executive - each should have a discrete and defined area of power and there should be a clear demarcation of functions between them. By having the strict sense of SOP, we can avoid absolutism in power by preventing monopoly of powers and functions within the 3 organs of the state other than reduce the potential for the abuse of governmental power by avoiding its concentration in the single person or institution. Furthermore, it is to avoid concentration of power in the hands of executive. Lord Acton claimed that "Absolute Power Corrupt Absolutely". Thus, there must be checks and balances in place to prevent the abuse of power. The Fundamental Purpose of the SOP is to avoid the abuse of power as i did mentioned above and the other one is to protect the rights and liberties of citizens.

I will touch later about checks and balances and our judicial reform. Nak tidur.... =p ngantuk nih!

p/s: Tahniah Datuk Ghauth. Walaupun kejap je kenal Prof. Ghauth ni tapi mmg best. Ada satu perkara tak boleh lupa. Ingat sampai sekarang cerita yang Prof bawak masa orientation dulu. Dari mata terpejam terus fresh bila dgr cite tu. Sape tahu diam sudey. Keskeskes.... :D

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