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Monday, April 30, 2007

The Nazri-Zaid Debate

Much has been written about this already (see here). The debate was, in effect, a non-starter. Zaid Ibrahim did a commendable job, not pulling his punches as he described the judiciary as "hopeless" and arguing that the system was in need of a revamp to ensure independent and competent judges at all levels.

Nazri was a surprise, not so much for speaking like a politician but rather for assuming that members of the audience, comprising largely members of the Bar, were stupid enough to believe the line he was taking. Some of this made the press and I think I would not be overstating things to say that the Minister outdid himself.

The main points made by the Minister were:
  • the system of appointments is fine. It has been in place since 1957 and has worked well
  • the system has its own safeguards i.e. the choice is not that of one person - be it the Prime Minister or the Chief Justice - as the Conference of Rulers and respective heads of the Judiciary are to be consulted
  • that, if at all, the problem is with the Chief Justice, an individual as opposed to the system
  • parties interested in the appointments process should avail themselves of the opportunity to interact directly with those involved in the appointments process
  • all persons appointed are beholden to the person or authority appointing them. As such, a judicial appointments commission would itself not be independent
  • the Government is satisfied with the Judiciary. The Government has about 98% majority in Parliament. Their view is that of the people. The assertion that there is no confidence in the judiciary is questionable
It does not take a great deal of thought to see that the Minister has completely missed the plot and, in having said what he did, proved the need for a commission. My reasons for saying so are:
  • Justice must not only be done. It must be seen to be done. The Minister appears to have overlooked this fundamental and crucial aspect of the administration of justice. As such, it does not matter whether the Judiciary is in fact doing fine if the public thinks otherwise. The Minister did not address the serious lack of public confidence. On matters of this nature, the Government does not speak for the rakyat. It must listen. Saying, therefore, that the Government is satisfied is not sufficient
  • There is a serious question about the independence of the Judiciary. Much of what the Minister said reinforces the concern the Judiciary is not independent. In particular, the emphasis by the Minister that the Prime Minister is the final authoritative appointing authority (my expression, not his) goes to show that the Executive does play a very big role. There is no as such no separation of powers
  • In the same vein, in saying that the problem members of the public have is with the Chief Justice, the Minister in effect is saying that there is room for personality cults within this most sacred of State Organs. This is unacceptable
  • There is a serious concern about the lack of transparency and the basis of appointments and promotions. The Minister did not address this
  • Saying that all persons appointed by another would be beholden shows a total lack of understanding as to how things should be. Was the Minister saying that, in applying the same logic, no Judge is independent? One would gather so if the Minister holds true to this point
  • The Minister appeared to have little or no understanding of the role and function of a Judicial Appointments Commission, nor did he show any interest in the same. The Commission would not be the appointing authority, it would merely make recommendations to the appointing authority who would have no discretion in this regard other than rejecting or accepting the recommendations of the Commission
  • The Minister failed to appreciate his own role and function. He is duty bound to uphold the Constitution in letter and in spirit. He is duty bound to take into consideration situations which reveal a deficiency in the situation at hand. The Minister referred to the so called 'sensitive' cases (Subashini etc) but went on to blame the law - Article 121(1A) - without pausing to take into consideration the fact that cases of this nature are a recent phenomenon. Saying, therefore, that he is satisfied with the performance of the Judiciary and demanding to be convinced of a need for any change to the existing system of appointments is simply not good enough
It is apparent that there is the current Government does not have the political will to effect changes which are beneficial for the country. Having considered the role and function of a judicial appointments commission, what reason could there be for not introducing the measure here. That process, if introduced, would result in a stronger and more competent Judiciary.

Is that not a good thing?



Anonymous said...

this is to be expected as the government sorely lacks the confidence and has to remain in control of all the essential branches of power. as we all know, absolute power corrupts absolutely. and thats what is happening with the lack of check and balance as power remains concentrated in the executive branch. as in a chinese saying, the executive hands now cover the whole heavens and there is a distinct lack of respect for the rule of law by the executive, judiciary and law enforcement branches.

Milky Tea said...

Regardless of where you stand in respect of the judicial appointment issue, one thing is clear. Ergo, in the long run, a robust and independent judiciary is good for business.
If health can become health-tourism, why not the law, ahem.. jurisdiction-tourism. Its going on already anyway. But we are at the losing end for as long as the country is in need to negotiate and conclude contracts with large MNCs, they will park the jurisdiction in another country, US, Hong Kong, Singapore, Geneva... anywhere but Malaysia. The Government may (and I stress 'may') have the clout to insist on local law and jurisdiction in most of their contracts with foreign parties, but the rest of us are mostly handicapped in that area. Let's support the independence and professionalism of the judiciary, for business sake, if not for purely moral reasons. Good Biz!

Anonymous said...

Dear MIS,

This is off topic. By right I should be emailing you but I thot I catch your attention here.

You have raised alot question about Article 121(1A) and I believe there are several cases that you are handling concerning this article.

Today, I chanced upon Selangor's Administration of Syariah and noticed that under the civil jurisdicton of syariah court they do not have jurisdiction if all the parties involved were not muslim.

I also noted that the Administration of Islamic (FT) Law also carry the same limitation.

See 46(2)
(2) A Syariah High Court shall-

(a) in its criminal jurisdiction, try any offence committed by a Muslim and punishable under the Enactment or the Islamic Family Law (Federal Territories) Act 1984, or under any other written law prescribing offences against precepts of the religion of Islam for the time being in force, and may impose any punishment provided therefor;

(b) in its civil jurisdiction, hear and determine all actions and proceedings in which all the parties are Muslims and which relate to-

(i) betrothal, marriage, ruju', divorce, nullity of marriage (fasakh), nusyuz, or judicial separation (faraq) or other matters relating to the relationship between husband and wife;

(ii) any disposition of, or claim to, property arising out of any of the matters set out in subparagraph (i);

(iii) the maintenance of dependants, legitimacy, or guardianship or custody (hadhanah) of infants;

(iv) the division of, or claims to, harta sepencarian;

(v) wills or death-bed gifts (marad-al-maut) of a deceased Muslim;

(vi) gifts inter vivos, or settlements made without adequate consideration in money or money's worth, by a Muslim;

(vii) wakaf or nazr;

(viii) division and inheritance of testate or intestate property;

(ix) the determination of the persons entitled to share in the estate of a deceased Muslim or of the shares to which such persons are respectively entitled; or

(x) other matters in respect of which jurisdiction is conferred by any written law.


So a matter involving custody in cases like Saravanan and Jayaganesh I am wondering why the Syariah court even entertain his application whereby the other party one party was not a muslim.

I am leaving to you to raise this point. You can contact me at


Anonymous said...

Dear Malik, the Po Kuan issue got me a bit senile over the past few days. Just wondering, if you could use your ‘ice’ to amplify this.

I love Po Kuan, we all do, but that is not the issue. If there is a 10 best blogs award, this would win one and on that score, Disquiet owes us.

I seriously believe the government has quelled a potentially violent mob by NOT axing the offenders and we are directly responsible for creating this mob; and I have not belabored beyond this post. Is anyone at my register!

stevie said...


i'm a highschool dropout so i will not pretend to know a whole lot.I follow your work because my sister is a senior lawyer and she speaks highly and often of you.

to me, nazri was just doing his PR, he wasn't interested in debate of any kind.

you see him in the papers the next day, and he looks like this progressive young minister open to debates. fuck that la.

he used you guys and you let him.

dont be stupid.

the Sojourner said...

hello, just dropping by.
is it ok if i link up to u?
i find ur blog both relevant and timely.

thanks and have a nice day!

Anonymous said...

Bro, u said

"As such, it does not matter whether the Judiciary is in fact doing fine if the public thinks otherwise. The Minister did not address the serious lack of public confidence."

Are we sure that the "public thinks otherwise"? The majority? The majority voted them in with huge mandate, for better or for worse.

What is the benchmark that we use to measure what u wrote represents the "public" as well as the "majoirty voice".

Just a tot!

NYPT said...

nazri is clearly struggling to come up with valid excuses.....