PUTRAJAYA (April 9, 2008): Chief Justice Datuk Abdul Hamid Mohamad today said judges should be strong enough to resist any attempt to interfere with their independence if such an occasion arises, to give meaning to the doctrine of separation of powers.
He said the Executive (government) should also not interfere with the decisions of judges, or appear to interfere.
"Once the public is convinced that there is no interference by the Executive in the decisions of the judges, half the battle is won," Abdul Hamid said in the annual judges conference here.
In his call for the legislature, the Executive and the judiciary to respect each other’s area of jurisdiction, Abdul Hamid said they must subscribe to and practise the doctrine of separation of powers as provided for by the federal constitution.
He said the negative perceptions of the public towards the judiciary are not caused by factors from within the judiciary alone but also from without.
"So, to redeem the situation, both factors must be addressed," he said.
Abdul Hamid said next comes the role played by the judges themselves. "If the public is convinced that the judges are independent, incorruptible, hard-working, fair and free from any vested interest, then, we are in the right direction in redeeming the situation."
In this respect, he said, the choice of persons to be appointed as judge is important. "We should apply the correct criteria in choosing them, such as integrity, knowledge, incorruptible, hard-working, fair, of good character and able to ‘buat kerja’ (work)."
He said there are members of the public whose only concern is their personal interests. As far as they are concerned, the court is right if it decides in their favour and wrong if it decides against them, irrespective of the law and the evidence adduced in court.
"The moment a judge decides against them, they write malicious complaints against the judge, accusing him of corruption and bias," he added.
The three-day conference is being attended by judges nationwide.
Abdul Hamid also addressed other matters in his speech:
> On the proposed Commission or Committee to vet candidates for the appointment of judges.
He said this is a policy decision for the Executive branch to make. "If the Executive, in its wisdom, believes that it will help in identifying the right candidates, if it will help redeem the negative perception of the judiciary, if it will help to redeem the negative perception towards the Executive in the appointment of judges, if it will help to regain the confidence of the public in the judiciary and the Executive in relation to the judiciary, why not?," he said.
> On the proposed apology to the former lord president Tun Salleh Abas and the other two former Federal Court judges for the 1998 judicial crisis.
"Again, it is a policy decision for the Executive to make. As far as I am concerned, if the Executive, again, in its wisdom, believes that it is the proper thing to do, I welcome it. After all, in that episode, the judiciary was on the receiving end."
> On writing judgments
Judges who fail to write their own judgments are committing a misconduct, he warned. He said it is a dereliction of duty for a judge to ask someone, including his or her research officer, to draft the judgment.
He said when a judgment is written for them, there is a great temptation for them to merely place their signature to reduce the statistic of unwritten judgments.
"It may even encourage corruption on the part of the officers who put up the judgments," said Abdul Hamid.
Citing the practice in the United States, in which the judges’ clerks draft the judgments, he said he did not think it is a practice that the judges here should adopt.
He said judgments are something very personal that every judge should be proud of, but that of late, more and more cut-and-paste judgments have surfaced.
"Passages are lifted up and pasted on the judgment without considering the facts and ratio of the case."
On the issue related to job performance, he said the nature of work of a judge is very difficult to measure.
"Statistics may not tell a lie but may not tell the whole truth. But when statistics are intentionally manipulated, it will never tell the truth."
> On arbitration
Judges should take a robust stance on enforcement of arbitral awards to discourage unmeritorious parties from delaying and abusing the processes of court and bringing the arbitration process into disrepute.
He said one of the most common complaints by parties who have experienced arbitration is the long process the winning party must go through again in court to realize the sum awarded.
"Efficient handling of arbitration cases will also help project Malaysia’s image and the image of our judiciary in the international arena," said Abdul Hamid.
Singapore and Hongkong have made their mark and are becoming preferred centres for arbitration, he said.
He said a major factor considered by international parties when negotiating arbitration clauses in their contracts is the quality and speed of judgments delivered by judges in the country which is chosen and whether those judgments support the arbitral process.
Updated: 11:18AM Thu, 10 Apr 2008
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