Court’s Duty to Protect People’s Rights
Malaysia practices parliamentary democracy and is ruled as a Constitutional Monarchy, with the Yang di-Pertuan Agong as the Head of the country. Theoretically, the Constitution functions to create a form of government that is just and able to meet the needs and requirements of the people. It ensures that the leader exercises his duties without abusing the power accorded to him. As such, the Federal Constitution of Malaysia, the supreme law of the land, explicitly holds the principle of separation of powers and divides the authority of the Federation into Legislative (lawmaking body), Judicial and Executive (ruling body) to ensure the system of checks and balances.
The judicial authority of Malaysia is vested in the Federal Court, the High Courts and Subordinate Courts. Presently, the Federal Court is the highest court in Malaysia. The Head of the Judiciary is the Chief Justice of the Federal Court. The Court plays an important role in interpreting the law and protecting the aspiration of the Constitution. It is empowered to hear and determine civil and criminal matters, as well as to pronounce on the legality of any legislative or executive acts.
By law, justice is to be granted in disputes not only between citizens and citizens but also between citizens and the government and its agencies.
The constitutional role of judges is to deliver their judgment in accordance with the law and the evidence presented before them, independent of political or improper influences. Therefore, a decision made by the court may not conform to government policy, or a state project may be suspended in view of the right of some individuals or organization. To put it simply, the judges’ duty is to safeguard and protect the people’s fundamental freedoms and rights provided by the Constitution. In order to perform its judicial functions impartially, the judiciary must be independent, that is independence of the individual judges in their exercise of judicial functions and independence of the Judiciary as an institution.
In his written response to an issue raised at the Dewan Rakyat recently, Prime Minister Dato’ Seri Abdullah Badawi affirmed that the judiciary was indeed independent and there was no need to set up a royal commission to restore its independence. The existing system in the appointment of High Court judges - maintained by the government - was sufficient to ensure the independence of the institution, he said. Furthermore, the Government has always adhered to the principle of separation of powers. (Bernama, July 20, 04)
Nonetheless, we cannot afford to ignore the public concerns over the independence, impartiality and integrity of the Malaysian Judiciary. Two fundamental questions have been raised:
- Is the rule of law in this country equally applicable to all citizens?
- Is the law enforcement conducted without fear and favour?
Public Losing Faith
Malaysian Judiciary was said to be independent until 1988 when a number of suits against the Government resulted in the attacks on the Judiciary by several members of the Government. The subsequent removal of judges including the Lord President Tun Salleh Abbas, and ultimately the amendment of Article 125 of the Federal Constitution, raised awareness on the deterioration in judicial independence.
Further, the narrow interpretations of the Constitution, instances of refusals to exercise jurisdiction and inconsistencies in decisions by some judges have created doubts in the integrity of the system as a whole. Today, when there is a case before the court, the most probable question to first arise is, "Who is the judge?".
The July verdict on a custody case involving a Hindu woman and her estranged husband who had converted to Islam, which also concerned the conversion of their two minor children to the Islamic faith, drew much attention and criticism from the public. The High Court judge, on the one hand, ruled that the conversion endorsed by the Syariah court was not binding on the Hindu mother and that the father "cannot literally convert the children without the consent of the mother. They were converted in a shroud of secrecy and hence there was no automatic conversion." On the other hand, he placed a caveat on the mother, who was granted actual custody of their children, that she would lose her right if there were grounds to believe she might "influence the children’s present religious beliefs or make them eat pork" (The Star, Jul 21, 04).
Indirectly, he confirmed the conversion, thus denying the mother’s right as equal party in the choice of religion for her children. Such contradictory statements could not persuade the public on the impartiality and sound judgment of the said judge, and the existing laws to ensure religious freedom were consequently ignored.
A subsequent case on apostasy also raised public discontent. The Chief Justice, on July 21, dismissed the appeal by four Kelantanese (one deceased while in imprisonment) for a declaration that the Syariah Court had no jurisdiction over them. "Although they had declared themselves murtad (apostates) in 1998, they can still be brought before the Syariah Court in 2000 because it concerns an offence committed when they still embraced the Islamic faith" (NST, Jul 21, 04). The questions on citizens’ constitutional right to renounce their religion – in particular, the Islamic faith - posed by the appellants, were left unanswered. By declining to answer, the Federal Court, in effect, suspended a person’s right to choose his/her religion, which contravened the provisions in the Constitution.
Dilemma of Two Courts
The above examples also indicate the dilemma of dual jurisdiction (Syariah and Civil). A recent public seminar in June at the Bar Council pointed out that issues of religious freedom, conversion and renunciation, particularly in family disputes, remain unresolved mainly due to the attitude of the Malaysian judiciary.
Raja Muda of Perak Raja Nazrin Shah had eloquently said that "the sovereignty of the law cannot be compromised and should instead be protected in a firm, bold, transparent and open manner" (NST, Aug 10, 04). The guardian of this sovereignty is the civil judiciary, who must ensure that the people’s rights are protected and that everyone is treated equally before the law.
However, we must not dismiss the sound and impartial judgments with emphasis on public interests in our judicial history. The upright judgments are beacons of hope to the public. But, while there are judges whose integrity and impartiality are commendable, there is still a need to restore public confidence; it is not enough for the Government alone to have confidence in the judiciary.
"… the judiciary would count for naught unless it is made up of fearless and uncorrupt judges." -- Tun Hussein Onn, when opening the 10th Law Asia conference on 29 June 1987, Kuala Lumpur.
Besides being free from interference - be it from the legislature or executive - accountability and transparency of the judiciary are essential for democracy in this country. Therefore, it is crucial for Christians to understand the judicial authority of Malaysia, the importance of the role of courts in the application of the law without fear and favour, and finally to uphold the system and the judges in prayer.
CONSTITUTION OF AND APPOINTMENT TO THE COURT
The Federal Court consists of a president styled as the Chief Justice (formerly called the Lord President), the President of the Court of Appeal, the two Chief Judges of the High Courts in Malaya and Sabah and Sarawak (formerly called Chief Justices) and presently four Federal Court judges.
There are presently 8 Court of Appeal Judges excluding the President of the Court of Appeal. There are 48 Judges (including Judicial Commissioners) for the High Court in Malaya and a further 7 Judges (including Judicial Commissioners) for the High Court in Sabah and Sarawak. At the Subordinate Court level, there are 60 Sessions Court Judges of which 52 are in Peninsular Malaysia and 4 each in Sabah and Sarawak. At the Magistrate Court level, 151 posts have been approved (122 posts in Peninsular Malaysia, 10 posts in Sabah, 1 post in Labuan and 18 posts in Sarawak) of which 138 posts have been filled and presently there are 118 magistrates in Peninsular Malaysia, 7 magistrates in Sabah, 1 magistrate in Labuan and 12 magistrates in Sarawak.
The Chief Justice is the head of the Malaysian Judiciary. His appointment, like those of the President of Court of Appeal, the two Chief Judges, judges of the Federal Court, the Court of Appeal and the High Court, are made by His Majesty The Yang di-Pertuan Agong on the advice of the Prime Minister after consulting the Conference of Rulers.
As to the appointment of a judge to the Federal Court, the Court of Appeal and the High Courts, the Federal Constitution provides that the Prime Minister before tendering his advice shall consult the Chief Justice, the President of the Court of Appeal and the two Chief Judges. On the advice of the Chief Justice, His Majesty the Yang di-Pertuan Agong may also appoint a person who has held high judicial office in Malaysia to be an additional judge of the Federal Court. The Chief Justice may also, if the interests of justice so require, nominate a Court of Appeal Judge to sit as a Judge of the Federal Court. All judges of the Superior Courts retire at the age of 65.
CHIEF JUSTICE OF MALAYSIA
The Right Honourable Tan Sri Dato' Sri Ahmad Fairuz bin Dato' Sheikh Abdul Halim
PRESIDENT OF THE COURT OF APPEAL OF MALAYSIA
The Right Honourable Dato' Haji Abdul Malek bin Haji Ahmad
CHIEF JUDGE OF THE HIGH COURT IN MALAYA
The Honourable Tan Sri Dato' Sri Haidar bin Mohd Noor
CHIEF JUDGE OF THE HIGH COURT IN SABAH AND SARAWAK
Right Honourable Tan Sri Datuk Amar Steve Shim Lip Kiong
JUDGES OF THE FEDERAL COURT OF MALAYSIA (As at 17 August 2004)
- The Honourable Dato' Siti Norma bt. Yaakob
- The Honourable Dato' Abdul Hamid bin Haji Mohamad
- The Honourable Dato' Pajan Singh Gill
- The Honourable Datin Paduka Rahmah bt Hussain
- The Honourable Dato' Alauddin bin Dato' Mohd Sheriff
JUDGES OF THE COURT OF APPEAL OF MALAYSIA (As at 17 August 2004)
- The Honourable Dato' Gopal Sri Ram
- The Honourable Datuk Haji Mokhtar bin Haji Sidin
- The Honourable Datuk Denis Ong Jiew Fook
- The Honourable Dato' Haji Abdul Kadir bin Sulaiman
- The Honourable Dato' Abdul Aziz bin Mohamad
- The Honourable Datuk Richard Malanjum
- The Honourable Dato' Arifin bin Zakaria
- The Honourable Dato' Wira Haji Mohd Ghazali bin Mohd Yusoff
- The Honourable Dato' Hashim bin Dato' Haji Yusoff
- The Honourable Dato' Haji Arifin bin Haji Jaka
- The Honourable Tengku Dato' Baharudin Shah bin Tengku Mahmud
- The Honourable Dato' Nik Hashim bin Nik Ab. Rahman
- The Honourable Datuk Augustine Paul a/l Sinnappen
JUDGES OF THE HIGH COURTS IN MALAYA AND SABAH AND SARAWAK (As at 17 August 2004)
- The Honourable Dato' Faiza bin Haji Tamby Chik
- The Honourable Dato' James Foong Cheng Yuen
- The Honourable Datuk Ian Chin Hon Chong
- The Honourable Dato' Azmel bin Haji Maamor
- The Honourable Dato' Vincent Ng Kim Khoay
- The Honourable Dato' Mohd Noor bin Haji Abdullah
- The Honourable Dato' Haji Abdul Malik bin Haji Ishak
- The Honourable Dato' Selventhiranathan a/l Thiagarajah
- The Honourable Dato' Mohd Hishamudin bin Haji Mohd Yunus
- The Honourable Dato' Haji Yaacob bin Haji Ismail
- The Honourable Dato' Low Hop Bing
- The Honourable Dato' Kang Hwee Gee
- The Honourable Dato' Zaleha bt. Zahari
- The Honourable Dato' Zulkefli bin Ahmad Makinudin
- The Honourable Datuk Haji Suriyadi bin Halim Omar
- The Honourable Dato' Nihrumala Segara a/l M.K. Pillay
- The Honourable Dato' Md Raus bin Sharif
- The Honourable Dato' Abdul Kadir bin Musa
- The Honourable Dato' Tee Ah Sing
- The Honourable Datuk Abdul Wahab bin Patail
- The Honourable Dato' Abu Samah bin Nordin
- The Honourable Dato' Abdull Hamid bin Embong
- The Honourable Dato' Jeffrey Tan Kok Wha
- The Honourable Dato' Kamalanathan a/l Ratnam
- The Honourable Datuk Zainun bt. Ali
- The Honourable Dato' Azhar @ Izhar bin Haji Ma'ah
- The Honourable Dato' Wan Adnan @ Addinan bin Muhamad
- The Honourable Dato' Muhamad Ideres bin Muhamad Rapee
- The Honourable Dato' Hasan bin Lah
- The Honourable Datuk Sulong bin Matjeraie
- The Honourable Datuk Clement Allan Skinner
- The Honourable Datuk Heliliah bt. Mohd Yusof
- The Honourable Datuk Ramly bin Haji Ali
- The Honourable Datuk Ahmad bin Haji Maarop
- The Honourable Dato' Sulaiman bin Daud
- The Honourable Tuan Thiripurasingam a/l Veerasingam
- The Honourable Datuk Zakaria bin Sam
- The Honourable Puan Su Geok Yiam
- The Honourable Tuan Syed Ahmad Helmy bin Syed Ahmad
JUDICIAL COMMISSIONERS OF THE HIGH COURTS IN MALAYA AND SABAH AND SARAWAK (As at 17 August 2004)
- The Honourable Dato' Balia Yusoff bin Wahi
- The Honourable Dato' Abdul Wahab bin Said Ahmad
- The Honourable Dato' Zainal Adzam bin Abd.Ghani
- The Honourable Dato' Alizatul Khair bt. Osman Khairuddin
- The Honourable Tuan Mokhtaruddin bin Baki
- The Honourable Dato' Abdul Aziz bin Abd.Rahim
- The Honourable Tuan Sangau Gunting
- The Honourable Puan Lau Bee Lan
- The Honourable Puan Siti Mariah bt. Haji Ahmad
- The Honourable Puan Wan Afrah bt. Wan Ibrahim
- The Honourable Dato' Haji Mohamed Apandi bin Haji Ali
- The Honourable Tuan KP Gengadharan a/l CR Nair
- The Honourable Tuan Linton Albert
- The Honourable Datuk Zaharah bt. Ibrahim
- The Honourable Dato' Azhar bin Mohamad
- The Honourable Dato' Salmah bt. Abdul Rahman
- The Honourable Tuan Mohamad Zabidin bin Mohd Diah