Dear Tun Dr. Mahathir,
Tun's following statements are referred:
"6. Were the judges sacked or suspended? I think they were sacked. The records say so. Now the Minister says "No", the judges were not sacked or suspended.
7. Why pay them compensation if they are not sacked or suspended and they did not even lose their pension rights?"
If the judges were sacked or suspended, there must be a legitimate reason for the Government to do so. It seemed that the current de facto Law Minister could not find a good and strong reason to claim that the judges were sacked since the later had been granted by the ex-de facto Law Minister huge sums of ex-gratia payment. Even if the judges were suspended pending for domestic inquiry, the law required that the suspension and the domestic inquiry process ought not exceed a certain reasonable period of time. It would be ridiculous for the current de facto Law Minister to say that the judges were suspended for such a long period of time, i.e. about twenty years.
If the Government's records really show that the judges were sacked, the current Government might risk the danger of being filed a lawsuit for wrongful dismissal because there was no hard evidence to prove that the judges did commit certain criminal offence or did conduct any act of improprietary in accordance with the Ethical Codes of the servicing judges. I guess it is much wiser for the current de facto Law Minister to say "No, the judges were not sacked or suspended." since the records-keeping could have been already messed up or adulterated by now and no records could be located to prove that the judges were being rightfully sacked or suspended.
"Why pay them compensation if they (the judges) are not sacked or suspended and they did not even lose their pension rights?" I don't think ex-gratia payments should be classified as an illegitimate or unnecessary compensation since the ex-gratia payments were made in good faith as a token of appreciation to the ex judges who had been either wrongfully terminated or wrongfully suspended by the Government during the reign of Tun as the Prime Minister. The principles of Natural Justice make the majority Malaysians feel that Tun was wrong in the behaviour of terminating those judges through the working mechanism of a tribunal proceeding because Tun as the responsible Prime Minister at that point of time chose not to disclose on time to the public the true reason for terminating the judges. I believe not only the judges themselves have the rights to be informed on time about the reason of they themselves being terminated from the service as a judge but the public of Malaysia also have the rights to obtain the timely information on the reason why such a drastic action had been taken against those judges during a time of intense political power struggle in Umno about 20 years ago. Apparently, Tun is deemed to have substantially indulged in the conflict of interest by causing the judges to be terminated since those judges were perceived to be your political foes.
Tun, I wish to advise that the time has changed and majority Malaysians have higher democratic aspiration now than 20 years' ago. If Najib is going to become the next Prime Minister of Malaysia, the majority Malaysians will expect him not to follow your bad precedence in meddling with the judicial independence. Therefore, it is much better for Tun to leave the judiciary branch of the Government alone and not to intervene too much in the appointment of judges in the future. A proper checks-and-balances system would require that the appointment of the judges should be based on the recommendation of a Judges Appointment Committee and should be subjected to the final approval by the Conference of the Malay Rulers. The present political reality in Malaysia will no longer allow too much power to be vested in the hand of only one person, i.e. the Prime Minister, lest the Prime Minister will be turned into a violent tyrant or corrupt dictator if given too much uncontrollable political power.
Tun, for the sake of our future generations will you please learn to adjust your own tyrannic mindset now since you are no longer the Prime Minister of Malaysia?
Onlooker
Saturday, November 8, 2008
Saturday, June 28, 2008
Further Discussion on Judicial Independence
Comment by onlooker:
The article below is a good and knowledge-nourishing discussion on Judicial Independence. However, readers are advised to read it within the scope of certain judiciary system which requires the judges to be elected by the registered voters. In most countries such as Malaysia and Singapore, judges are not elected by the ordinary people who have the voting rights. In Malaysia, judges are usually being appointed by the Paramount Ruler, Yang Dipertuan Agong, based on the recommendations of the Prime Minister and the Chief Justice. The Chief Justice of Malaysia is appointed by the Paramount Ruler with the recommendation of the Prime Minister. Therefore, the freedom of campaigning on judicial independence is severely restricted by the undemocratic system of appointment. The Prime Minister as the head of Executive Branch will usually be reluctant to grant full judicial independence to the Judicial Branch. Therefore, in my personal opinion, a thorough judicial reform in Malaysia seems to be impossible before a thorough political reform can be made happen to the Executive Branch and the Legislative Branch. The dream of Judicial Reform in Malaysia will only come true when the initiative of reform is coming directly from both the salary dispenser (Executive Branch) and the law-maker (Legislative Branch). This initiative may imply that Malaysia needs a great courage and strong willingness to accept big changes by approving major overhaul in the Federal Constitution to make it resemble the Constitution of the United States.
Onlooker
By hai on June 27, 2008 9:14 PM
Judicial Independence as a Campaign Platform Issues, such as protecting judicial independence, improving interbranch relations, and expanding outreach to the people.
Improving Judicial Selection and "Call to Action" as a blueprint for judicial election reform.
"Good judging is good politics . . ." The people will support judges whom they perceive as independent even if they do not agree with particular decisions. But judges have to talk about judicial independence and make it a campaign issue.
Judges base their decisions on the facts and law presented in each individual case, not on their personal viewpoints on policy issues. Unlike other candidates, judges cannot campaign by making promises about how they'll decide issues. Constraints are placed upon judicial candidates in all states by canons of judicial conduct, and limits are placed on a judge's ability to sit on a case if the judge "decides" the case during a campaign. Judicial conduct also limit the political activities of judges.
The traditional view is that if a judge comments on a pending or impending case, the comments will reduce the litigants' and the public's confidence in the impartiality and fairness of our courts.
A "candidate for a judicial office, including an incumbent judge" shall not "announce his or her views on disputed legal or political issues."
Judges and judicial candidates can and should speak on the issue of judicial independence.
Free to Speak on Judicial Independence
Judges and candidates are legally and ethically free to speak about the critical importance of judicial independence. In any judicial-selection system, the best way to ensure judicial independence is to develop the public's understanding of, and respect for, the concept of judicial independence. Lawyers and judges must educate the public on judicial roles and duties.
Educational efforts should not be restricted to elections or times of crisis. Judges and lawyers must be community educators using a variety of tools to reach the public, the media, and the executive and legislative branches of government. Public outreach efforts promote judicial independence because they enable citizens to evaluate critical attacks on judges and to value judicial independence.
The points that should be addressed in this education effort are:
• What is judicial independence?
• Why is judicial independence important to you, the citizen?
• What are the threats to judicial independence? and
• How can judicial independence be protected?
What is judicial independence?
"The law makes a promise — neutrality. If the promise gets broken, the law as we know it ceases to exist."
Judicial independence means that judges decide cases fairly and impartially, relying only on the facts and the law. Individual judges and the judicial branch as a whole should work free of ideological influence. Although all judges do not reason alike or necessarily reach the same decision, decisions should be based on determinations of the evidence and the law, not on public opinion polls; personal whim; prejudice or fear; or interference from the legislative or the executive branches, or private citizens or groups.
There are two types of judicial independence: decisional independence and institutional independence (sometimes called branch independence). Decisional independence refers to a judge's ability to render decisions free from political or popular influence; decisions should be based solely on the facts of the individual case and the applicable law. Institutional independence describes the judicial branch as a separate and co-equal branch of government with the executive and legislative branches.
Any discussion of judicial independence needs, however, to be joined with a discussion of accountability.
It is not only ensures the protection of rights, but also enforces responsibilities. The rule of law holds government officials accountable to those in whose name they govern to prevent abuse of power, and the judiciary is not exempt from accountability. Judges are accountable to the public to work hard, keep their dockets current, educate themselves about changes in the law, and treat each person with respect and dignity. Judges are accountable to represent the judicial branch before the public and other branches of government, and to advocate for court reform.
Why is judicial independence important to you, the citizen?
Judicial independence is a means to an end — the end is due process, a fair trial according to law. Judicial independence thus protects the litigants in court and all the people of the nation.
What are the threats to judicial independence?
Historically, threats to judicial independence have come from the legislative and executive branches. Executive and legislative leaders have at times tried to influence judicial outcomes.
Governmental threats to an independent judiciary are:
• Poor interbranch relationships among the judiciary, the legislature, and the executive, marked by a lack of communication;
• Legislative limits on or curtailment of judicial jurisdiction;
• Legislative refusal to increase judicial salaries; and
• Chronic underfunding of the judicial branch and increasing workload.
More recently, nongovernmental groups have threatened judicial independence using political, social, and economic resources to influence the selection and retention of judges.The danger is that when individuals or groups are highly organized, ideologically driven, and well funded, their self-interest in winning cases overcomes their interest in an independent judiciary.
More specific threats to judicial independence by nongovernmental groups include:
• Inappropriate threats of impeachment prompted by particular judicial decisions;
• Political threats intended to influence a judge's decision in an individual case; and
• Misleading criticism of individual decisions.
The best judges are those who resist threats to judicial independence and actively advocate judicial independence. The basic, underlying safeguard for judicial independence is popular support of the concept.
How can judicial independence be protected?
Public education efforts about judicial independence and judicial selection face a number of challenges, including limited public knowledge of courts and judges, and limited resources to reach a broad public audience.
If judges include judicial independence as a campaign issue in their election and retention campaigns, the public will respond with an eagerness to learn more. The public's appreciation of, and respect for, judicial independence is the best way to ensure that the judiciary will remain independent. Campaigning on judicial independence can educate both judges and the electorate on the importance of protecting fair and impartial courts.
The article below is a good and knowledge-nourishing discussion on Judicial Independence. However, readers are advised to read it within the scope of certain judiciary system which requires the judges to be elected by the registered voters. In most countries such as Malaysia and Singapore, judges are not elected by the ordinary people who have the voting rights. In Malaysia, judges are usually being appointed by the Paramount Ruler, Yang Dipertuan Agong, based on the recommendations of the Prime Minister and the Chief Justice. The Chief Justice of Malaysia is appointed by the Paramount Ruler with the recommendation of the Prime Minister. Therefore, the freedom of campaigning on judicial independence is severely restricted by the undemocratic system of appointment. The Prime Minister as the head of Executive Branch will usually be reluctant to grant full judicial independence to the Judicial Branch. Therefore, in my personal opinion, a thorough judicial reform in Malaysia seems to be impossible before a thorough political reform can be made happen to the Executive Branch and the Legislative Branch. The dream of Judicial Reform in Malaysia will only come true when the initiative of reform is coming directly from both the salary dispenser (Executive Branch) and the law-maker (Legislative Branch). This initiative may imply that Malaysia needs a great courage and strong willingness to accept big changes by approving major overhaul in the Federal Constitution to make it resemble the Constitution of the United States.
Onlooker
By hai on June 27, 2008 9:14 PM
Judicial Independence as a Campaign Platform Issues, such as protecting judicial independence, improving interbranch relations, and expanding outreach to the people.
Improving Judicial Selection and "Call to Action" as a blueprint for judicial election reform.
"Good judging is good politics . . ." The people will support judges whom they perceive as independent even if they do not agree with particular decisions. But judges have to talk about judicial independence and make it a campaign issue.
Judges base their decisions on the facts and law presented in each individual case, not on their personal viewpoints on policy issues. Unlike other candidates, judges cannot campaign by making promises about how they'll decide issues. Constraints are placed upon judicial candidates in all states by canons of judicial conduct, and limits are placed on a judge's ability to sit on a case if the judge "decides" the case during a campaign. Judicial conduct also limit the political activities of judges.
The traditional view is that if a judge comments on a pending or impending case, the comments will reduce the litigants' and the public's confidence in the impartiality and fairness of our courts.
A "candidate for a judicial office, including an incumbent judge" shall not "announce his or her views on disputed legal or political issues."
Judges and judicial candidates can and should speak on the issue of judicial independence.
Free to Speak on Judicial Independence
Judges and candidates are legally and ethically free to speak about the critical importance of judicial independence. In any judicial-selection system, the best way to ensure judicial independence is to develop the public's understanding of, and respect for, the concept of judicial independence. Lawyers and judges must educate the public on judicial roles and duties.
Educational efforts should not be restricted to elections or times of crisis. Judges and lawyers must be community educators using a variety of tools to reach the public, the media, and the executive and legislative branches of government. Public outreach efforts promote judicial independence because they enable citizens to evaluate critical attacks on judges and to value judicial independence.
The points that should be addressed in this education effort are:
• What is judicial independence?
• Why is judicial independence important to you, the citizen?
• What are the threats to judicial independence? and
• How can judicial independence be protected?
What is judicial independence?
"The law makes a promise — neutrality. If the promise gets broken, the law as we know it ceases to exist."
Judicial independence means that judges decide cases fairly and impartially, relying only on the facts and the law. Individual judges and the judicial branch as a whole should work free of ideological influence. Although all judges do not reason alike or necessarily reach the same decision, decisions should be based on determinations of the evidence and the law, not on public opinion polls; personal whim; prejudice or fear; or interference from the legislative or the executive branches, or private citizens or groups.
There are two types of judicial independence: decisional independence and institutional independence (sometimes called branch independence). Decisional independence refers to a judge's ability to render decisions free from political or popular influence; decisions should be based solely on the facts of the individual case and the applicable law. Institutional independence describes the judicial branch as a separate and co-equal branch of government with the executive and legislative branches.
Any discussion of judicial independence needs, however, to be joined with a discussion of accountability.
It is not only ensures the protection of rights, but also enforces responsibilities. The rule of law holds government officials accountable to those in whose name they govern to prevent abuse of power, and the judiciary is not exempt from accountability. Judges are accountable to the public to work hard, keep their dockets current, educate themselves about changes in the law, and treat each person with respect and dignity. Judges are accountable to represent the judicial branch before the public and other branches of government, and to advocate for court reform.
Why is judicial independence important to you, the citizen?
Judicial independence is a means to an end — the end is due process, a fair trial according to law. Judicial independence thus protects the litigants in court and all the people of the nation.
What are the threats to judicial independence?
Historically, threats to judicial independence have come from the legislative and executive branches. Executive and legislative leaders have at times tried to influence judicial outcomes.
Governmental threats to an independent judiciary are:
• Poor interbranch relationships among the judiciary, the legislature, and the executive, marked by a lack of communication;
• Legislative limits on or curtailment of judicial jurisdiction;
• Legislative refusal to increase judicial salaries; and
• Chronic underfunding of the judicial branch and increasing workload.
More recently, nongovernmental groups have threatened judicial independence using political, social, and economic resources to influence the selection and retention of judges.The danger is that when individuals or groups are highly organized, ideologically driven, and well funded, their self-interest in winning cases overcomes their interest in an independent judiciary.
More specific threats to judicial independence by nongovernmental groups include:
• Inappropriate threats of impeachment prompted by particular judicial decisions;
• Political threats intended to influence a judge's decision in an individual case; and
• Misleading criticism of individual decisions.
The best judges are those who resist threats to judicial independence and actively advocate judicial independence. The basic, underlying safeguard for judicial independence is popular support of the concept.
How can judicial independence be protected?
Public education efforts about judicial independence and judicial selection face a number of challenges, including limited public knowledge of courts and judges, and limited resources to reach a broad public audience.
If judges include judicial independence as a campaign issue in their election and retention campaigns, the public will respond with an eagerness to learn more. The public's appreciation of, and respect for, judicial independence is the best way to ensure that the judiciary will remain independent. Campaigning on judicial independence can educate both judges and the electorate on the importance of protecting fair and impartial courts.
Thursday, June 19, 2008
Some Hints on Judicial Independence
Onlooker said...
YAB Tun Dr. Mahathir,
I tried not to politicise on the issue of Ian Chin's Great Revelation but I have to tell you my true opinion from the bottom of my heart.
I think it is fine if we try to train our company CEO to be independent by requiring him to wash his own dirty dish in a motivation course. It is also fine for me to ask a favour from a girl friend of mine to come to my own house and do the dish wash work, which I forgot to do before I left home, when I am busy with my outwork and not be able to come home for a few weeks.
However, in the context of judicial independence, I don't see the point why you should train a court judge to wash his own dirty dish in a boot camp organised by military forces. It is ardent inappropriate for you or your subordinates to organise such a training course for a court judge since it is irrelevant to the profession of a court judge.
This training, when involved with a court judge without his prior knowledge and without his agreeing to the course syllabus, is tantamount to the misconduct of disrepect to judicial independence. If you insist that it is ok to ask a court judge to wash his own dirty dish in the public because you as a PM also did it, someone may be justified to argue that it is nothing wrong to ask you to mob the dirty floor of Petronas Twin Towers since you are the Advisor to Petronas and you draw remuneration from Petronas.
I suggest that you read some books on the U.S. Government in order to get a much better idea about separation of powers and judicial independence before you talk further on this issue. Otherwise, you will not have the adequate knowledge to rely upon as a common reference to discuss on the issue of judicial independence.
Many a time you have insisted on other people should do thing following your way. However, within the context of separation of powers, this stubbornness simply doesn't work! Even when you work in a private organisation, you should learn how to work in accordance with the job description given to you by your employer and not to encroach upon your other colleagues' territory, since there is an internal audit function which requires clear-cut separation of different job functions for different staff within the same organisation for purpose of checks and balances.
Hope you repent and begin to learn from the past mistake. God will forgive you if you really show a true repentance!
June 18, 2008 10:25 PM
YAB Tun Dr. Mahathir,
I tried not to politicise on the issue of Ian Chin's Great Revelation but I have to tell you my true opinion from the bottom of my heart.
I think it is fine if we try to train our company CEO to be independent by requiring him to wash his own dirty dish in a motivation course. It is also fine for me to ask a favour from a girl friend of mine to come to my own house and do the dish wash work, which I forgot to do before I left home, when I am busy with my outwork and not be able to come home for a few weeks.
However, in the context of judicial independence, I don't see the point why you should train a court judge to wash his own dirty dish in a boot camp organised by military forces. It is ardent inappropriate for you or your subordinates to organise such a training course for a court judge since it is irrelevant to the profession of a court judge.
This training, when involved with a court judge without his prior knowledge and without his agreeing to the course syllabus, is tantamount to the misconduct of disrepect to judicial independence. If you insist that it is ok to ask a court judge to wash his own dirty dish in the public because you as a PM also did it, someone may be justified to argue that it is nothing wrong to ask you to mob the dirty floor of Petronas Twin Towers since you are the Advisor to Petronas and you draw remuneration from Petronas.
I suggest that you read some books on the U.S. Government in order to get a much better idea about separation of powers and judicial independence before you talk further on this issue. Otherwise, you will not have the adequate knowledge to rely upon as a common reference to discuss on the issue of judicial independence.
Many a time you have insisted on other people should do thing following your way. However, within the context of separation of powers, this stubbornness simply doesn't work! Even when you work in a private organisation, you should learn how to work in accordance with the job description given to you by your employer and not to encroach upon your other colleagues' territory, since there is an internal audit function which requires clear-cut separation of different job functions for different staff within the same organisation for purpose of checks and balances.
Hope you repent and begin to learn from the past mistake. God will forgive you if you really show a true repentance!
June 18, 2008 10:25 PM
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