Functioning, non-corrupt Judiciary is part of Infrastructure
Atobe
Extracted from the Malaysian Star On-line - the following is a lecture by a US Judge in the Supreme Courts :-
Judging Kennedy
US Supreme Court associate justice Anthony M. Kennedy was in Kuala Lumpur to deliver the 20th Sultan Azlan Shah law lecture on Thursday. SOO EWE JIN followed his lecture at the Shangri-La Hotel and also had an exclusive interview with the judge on Saturday just before he flew back to Washington.
FROM a distance, Justice Anthony M. Kennedy looks like most judges do. He has a serious demeanour and throughout his lecture on “Written constitutions and the common law traditions” he did not depart from the seriousness of the subject. But he held the audience's attention because he delivered the lecture with a passion – and without the benefit of any notes. He knew the subject inside out.
“It was delivered with so much passion and conviction. Many said it was the best in 20 years,” said former judge Datuk Seri Dr Visu Sinnadurai.
The ballroom at the Shangri-La was not as packed as last year's lecture when Cherie Blair spoke, but Kennedy is certainly more distinguished.
While Blair is an acknowledged Queen's Counsel who is also married to British Prime Minister Tony Blair, Kennedy is a judge of the US Supreme Court. The highest court in the US comprises probably one of the most revered group of nine judges in the civilised world.
The subject of his lecture was certainly appropriate, and timely.
Although Malaysia draws its legal tradition from the British, it embraced the concept of a written constitution like the US. With these similarities, much of what he spoke on struck a chord among members of the audience.
Kennedy, up close and personal, certainly did not look so serious. He is a towering figure, and when he came out of the lift to meet me at the lobby, the first thing he did was to thank me for actually sitting through his lecture. He agreed to change our meeting place immediately as the photographer wanted to capture some elements of Kuala Lumpur in the pictures, so we proceeded to the 27th floor.
The judge was extremely warm and chatty, and despite the Malaysian official anxiously keeping check on our agreed time, he was pleased to expand on what he delivered at the lecture.
Asked why he did not have any prepared speech, Kennedy explained that speaking to the audience this way allowed him to be more personal. “I can see how my audience reacts. I notice there were many young people there. I wanted to acknowledge them because they were so gracious to come to a law lecture,” he said.
The only prepared item was a bookmark that was left on every chair in the hall.
“It was my wife, Mary, who came up with the idea. I wanted the audience to digest the three main points relating to The Rule of Law,” Kennedy said. The judge had stressed at the lecture that the term “Rule of Law” cannot actually be found in any legal textbook. It is a concept that is still very much open to interpretation, depending on the context.
For example, a dictator can also proclaim that the country he rules subscribes to the rule of law when the laws may be everything but fair and just.
To help the audience understand what he believes is the universally accepted concept of the Rule of Law, Kennedy referred to the bookmark.
On it, Kennedy outlines that The Rule of Law, from his understanding, means: 1. The Law is superior to, and binds the government and all its officials.
2. The Law must respect and preserve the dignity, equality, and human rights of all persons. To these ends, the Law must establish and safeguard the constitutional structures necessary to build a free society in which all citizens have a meaningful voice in shaping and enacting the rules that govern them.
3. The Law must device and maintain systems to advise all persons of their rights and it must empower them to fulfil just expectations and seek redress of grievances without fear of penalty or retaliation.
Kennedy quoted a simple example whereby government officials make the ordinary people think that they are doing them a big favour when the people come to them to make a request, like a form or information. “It is their job to do so, without question, not something we have to beg for and based on whether they want to give or not,” he said.
On the Constitution, Kennedy said the reason why the US Constitution has so few amendments is that the process to change it is not easy.
It is the duty of the judges to ensure that the process to challenge the Constitution is not flimsy.
“We must respect and revere the Constitution,” he told the audience. Explaining further at the interview, Kennedy said the constitution can be spelt with either a capital C or a small c.
“I often explain to my students, or members of an audience, that the one with the capital C is what we judges interpret. It is our great charter. But the one with the small c is the sum total of the morals, customs, traditions and understanding, among other things, that make for a peaceful and great culture. “I suppose the closer the formal, legal Big Constitution comes to the small constitution, the closer they match, then the more stable the community is.”
Kennedy stressed that we cannot be blind, indifferent or unaware of injustices.
Although the founding fathers could not have envisioned what might happen in the future, the process of interpreting the Constitution by judges on the Supreme Court is unique and quite unlike common law judges whose opinions can often be overruled by the legislature.
“Civilisation is a conversation over time,” Kennedy said.
“When cases are argued out from the constitutional perspective, we get new insights and new truths,” Kennedy said.
At the lecture, Kennedy pointed out that judges of the Supreme Court have life tenure and this gives them full independence. “But this is independence not to do as we wish, but to do as we must,” he stressed.
It was a profound statement that had members of the audience nodding their head in agreement.
An issue which he did not touch on at the lecture, but which he felt necessary to bring up at the interview was about giving adequate resources to the judiciary.
“I like to meet legislators, especially those in charge of the budget,” Kennedy said. “Worldwide, I know it is always difficult to convince the political branch to give adequate resources to the judiciary. “I can understand that. If you are a legislator, and you go back to your town, to the people who voted for you, and you tell them, 'I voted for more money for the courts', it is not a good political sell. They will tell him that we need roads, we need schools, we need healthcare...
“But you must remember that a functioning, honest, efficient, non-corrupt judiciary and legal system is part of the capital infrastructure of the country. It is as important as bridges, roads and utilities to the country's economic and social progress.
“You are investing in the progress of your country when you invest in an adequate judiciary. I always make the point. I know it is difficult, but they have to think about that.”
Prof Khaw Lake Tee, Dean of Universiti Malaya's Faculty of Law, is tremendously pleased with the response to the lecture.
“The series has become an eagerly awaited event for the legal fraternity in Malaysia. The lectures delivered by legal personalities provide a perspective of common law developments in other countries from which we can draw comparisons and lessons,” she said.
The lecture was graced by Sultan Azlan Shah of Perak, who is also Chancellor of Universiti Malaya, Sultan Sharafuddin Idris Shah of Selangor, and the Raja Muda of Perak, Raja Nazrin Shah, who is also the university's pro chancellor. UM vice-chancellor Datuk Rafiah Salim chaired the proceedings.
Can the Singapore Judiciary take note of the above ?
pikamaster
Fat hope ...
Atobe
The sad events that brought shame to the Malaysian and Singapore Courts in 1988, when a Pro-Government Singapore High Court Judge was sent to sit on a Panel - at the request of the Malaysian Government - to participate in an internal Malaysian political battle between the Executive Branch and the Independent Judiciary.
They were motivated to right a wrong by Chooi Mun Sou Aliran Monthly, Vol 24 (2004): Issue 8
Charges against Tan Sri Wan Sulaiman
The first charge was for ‘staying away and failing’ to attend the Kota Baru Supreme Court sitting scheduled for the 2 July 1988 ‘without good reasons’.
The second charge was for ‘ordering Supreme Court judges Datuk George Seah and Datuk Harun Hashim to leave their duties at the same Supreme Court hearing in Kota Baru without good and valid reasons’.
The Tribunal unanimously found that the above two charges against Tan Sri Wan Sulaiman had been established.
Comments on the tribunal's findings
Tan Sri Wan Sulaiman did ‘stay away’ from the Kota Baru Supreme Court sitting and he did order the other two Supreme Court judges to return to Kuala Lumpur for a possible special sitting. There is no dispute as to this. He had appeared before the Tribunal and had given his reasons. The Tribunal held that the charge of ‘misbehaviour’ on these two counts has been ‘proved against Tan Sri Wan Sulaiman beyond reasonable doubt’.
Although we have not heard the arguments of Counsel for Tan Sri Wan Sulaiman and the Attorney-General, as the proceedings were in camera, one can take it that the law as to what constitutes ‘misbehaviour’ was dealt with in depth at the hearing….
In paragraphs 14.2 through 14.9 of its Report, the Tribunal noted the events in relation to the suspension of Tun Salleh leading to the Special sitting of the Supreme Court on 2 July 1988, having ‘distilled’ the facts from the various Press reports.
Two major events are clear, that is, (1) the Ex Parte application before Ajaib Singh J which in the mind of Tan Sri Wan Sulaiman was ‘dragging on’ and (2) the Tribunal proceedings which were ‘speeding along’.
These two events were the main topic of conversation in all strata of Malaysian society at that period of time, especially among members of the legal fraternity. No one can deny that. The ‘state of the Judiciary’ was a matter of national importance and still is.
Paragraph 14.10 recorded that Tan Sri Wan Sulaiman said ‘...he thought that the proceedings before Ajaib Singh J were “dragging on”, particularly, as they took the form of merely an Ex Parte Motion for leave to apply an Order of Prohibition ...’
The Tribunal accepted the evidence of Tan Sri Wan Sulaiman and in their assessment said (in paragraph 14.40): ‘...it would be naive indeed to conclude that this Respondent’s conduct in cancelling his flight to Kota Baru and monitoring the proceeding in Ajaib Singh J’s Court, was merely to satisfy his curiosity.
He displayed a deep and continuing interest in proceedings concerning a friend and long time senior colleague and whilst this may be understandably humane it was totally inexcusable especially in view of his status as a Judge of the Supreme Court.
It is difficult to resist the inevitable inference that he was indeed actuated by an improper motive and mindful that the standard of proof is beyond reasonable doubt, Tribunal so find.Â’
The Tribunal did not in its assessment comment on the manner or speed of the proceedings of the Tun Salleh Tribunal when dealing with what was called ‘the third strand’, Tan Sri Wan Sulaiman’s ‘improper motive’ in cancelling his flight to Kota Baru and remaining in Kuala Lumpur to ‘monitor’ the proceedings in Ajaib Singh’s Court.
This fact, in my view is a fatal misdirection in the minds of members of the Tribunal.
To right a wrong
These two parallel proceedings, Tun Salleh Tribunal proceedings and ‘Ajaib Singh’s Court hearing’, stretching from the 28 June when Tun Salleh filed his Ex Parte application up to the Supreme Court sitting on 2 July must also be seen in the light of the appointment and composition of the Tun Salleh Tribunal and the objections of Tun Salleh and the Bar Council and also the reaction of the public. The Tribunal did not comment on this aspect.
Tan Sri Wan Sulaiman, like every right thinking and decent Malaysian was looking at the events of these past days with apprehension, to use an understatement.
I agree with the TribunalÂ’s finding that Tan Sri Wan Sulaiman cancelled his flight to Kota Baru in order to remain in Kuala Lumpur to monitor Ajaib Singh JÂ’s proceedings not out of curiosity.
He did so in order to be in Kuala Lumpur to take appropriate action to prevent a possible miscarriage of justice which was of national importance.
Tan Sri Wan SulaimanÂ’s motive was not improper as the Tribunal found. He was motivated by a noble thought, to right a possible wrong. His action was heroic.
In my opinion the conduct of Tan Sri Wan Sulaiman did not amount to ‘misbehaviour’. His dismissal was not justified.
Case against Datuk George Seah
Datuk George Seah was charged for ‘staying away and failing to perform his duties at the Supreme Court hearing scheduled for July 2nd 1988 in Kota Baru’. The Tribunal, by a 4 to 1 decision found that this charge ‘has been established beyond reasonable doubt’.
Comments on the tribunal's findings
I agree with the dissenting views of one member of the Tribunal - paragraph 16 of the Tribunal Report.
The dissenting member was correct in holding that the Respondent acted on the ‘direction; of Tan Sri Wan Sulaiman in returning to Kuala Lumpur. He then went on to consider whether there was an ‘improper motive’ on the part of the Respondent in disregarding the instruction given by the Acting Lord President, through Dato Harun Hashim and concluded that there was no such ‘improper motive’.
I would further add that Datuk George Seah acted spontaneously and with the correct motive - that is to be available in Kuala Lumpur to prevent a possible miscarriage of justice.
Like Tan Sri Wan Sulaiman and all right thinking and decent Malaysians, he wasÂ…Â’looking at the events of these past days with apprehensionÂ’.
The majority of the Tribunal quite correctly identified the crux of the matter in coming to their decision. They referred to the dilemma of Datuk George Seah: to answer either the directive of Tan Sri Wan Sulaiman ‘to return to Kuala Lumpur as soon as possible to sit on a matter not yet before the Court or the other directive from the Acting Lord President (made through Datuk Harun Hashim) to remain in Kota Baru and preside at a scheduled sitting at which some 20 appeals (civil and criminal) had been fixed for hearing’. They concluded that ‘there was no question but that the Acting Lord President’s directive had over-riding effect’.
Five different hats
The majority members, however, failed to consider the position of the Acting Lord President.
Tan Sri Hamid was wearing five hats (see box). He was a ‘disqualified person’.
The evidence before the Tribunal showed that Tan Sri Hamid knew of the proposed sitting in advance and he did not directly instruct Datuk George Seah to remain in Kota Baru.
Tan Sri Hamid also knew that Tan Sri Wan Sulaiman was in Kuala Lumpur in readiness for the proposed sitting. He did not directly instruct Tan Sri Wan Sulaiman to proceed to Kota Baru.
By failing to consider this crucial point the majority members misdirected themselves in coming to the conclusion that the conduct of Datuk George Seah amounted to ‘misbehaviour’.
Datuk George Seah acted correctly ‘in flying in the face of the Acting Lord President’s directive (given through Datuk Harun Hashim)’. He responded to the directive of Tan Sri Wan Sulaiman to prevent an injustice.
In my opinion the conduct of Datuk George Seah did not amount to ‘misbehaviour’. His dismissal was not justified.
