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Posted: 27 Oct 2011 07:58 PM PDT

The separation of powers is a central principle woven into the fabric of our Constitution. And it is essential that the judiciary is not only independent, but also seen to be independent of the other branches of Government.

The separation of powers is a central principle that was woven into the fabric of our Constitution. The Alliance submission to the Reid Commission, reflecting the unanimous view of all parties in Malaya, stated that "The Judiciary should be completely independent both of the Executive and the Legislature".

Andrew Yong, The Star

"MAHKAMAH Jabatan Perdana Menteri". I have to admit to have been slightly taken aback, to say the least, when I saw these words the other day, embroidered in gold on the black cotton jacket of a member of the court staff at the High Court in Penang. I blinked.

Was I at the wrong court? Had the High Court suddenly been subsumed into the Prime Minister's Department? Or was it that the Prime Minister's Department was now a department of the High Court?

Perhaps I should have understood that cashiers, clerks and other administrative staff at the High Court were civil servants appointed by the executive and assigned to the courts to support the administration of justice.

Perhaps I should have appreciated that in the absence of a dedicated Justice Ministry (which was abolished in 1970), it was only natural that such staff members would come under the Prime Minister's Department.

And yet, in spite of every rationalisation that I could think of, I knew, deep down, that the words in gold thread looked wrong, and were plainly inappropriate.

They could not possibly be read by a litigant appearing before the courts without giving him the wrong impression about the relationship between the courts and the head of the executive. And yet some staff manager had ordered those jackets.

Some court staff members were plainly wearing them. And there must have been some judges and registrars who saw them being worn on a day-to-day basis without raising any objection.

The separation of powers is a central principle that was woven into the fabric of our Constitution.

The Alliance submission to the Reid Commission, reflecting the unanimous view of all parties in Malaya, stated that "The Judiciary should be completely independent both of the Executive and the Legislature".

And for the public to have confidence in the judiciary, it is essential that the judiciary is not only independent, but also seen to be independent of the other branches of government.

Our Merdeka Constitution originally contained admirable safeguards of judicial independence.

Until 1960, Supreme Court judges were appointed by the King upon the recommendation of the Judicial and Legal Services Commission, after consulting the Conference of Rulers, with no input from the executive. Only in the appointment of the Chief Justice was the Prime Minister consulted.

The Merdeka Constitution likewise gave the executive no power to suspend or to constitute tribunals for the removal of judges, such powers being vested in the Judicial and Legal Services Commission, which was chaired by the Chief Justice and consisted mainly of judges or retired judges.

History sadly shows that the amendments of 1960, which vested in the executive the right to select, suspend and to commence removal proceedings against judges, ultimately paved the way for the 1988 constitutional crisis, the darkest days of the Malaysian judiciary, during which Lord President Salleh Abas and two other Supreme Court judges were dismissed by the executive.

Yet, even the Merdeka Constitution did not provide for a perfect separation between the executive and the judiciary.

This shortcoming can best be seen in the Judicial and Legal Service (JLS), which supplies magistrates and subordinate court judges as well as government legal officers.

Unlike in India, where the leaders of independence comprised many people imprisoned by the colonial justice system, and where the independence movement therefore campaigned for a strict separation of the judiciary and the prosecution services, in Malaya there has never been any pressure for such a separation.

To this day, it is normal for a JLS officer to alternate between the subordinate judiciary and the government legal services, and for magistrates and Sessions court judges to be junior in the JLS to Senior Federal Counsel who appear before them.

Lawyers will even tell tales of Sessions court judges standing up and addressing senior government lawyers as "Tuan" when the latter enters the judge's chambers! This state of affairs is plainly unsatisfactory.

Once a judge is appointed to the High Court, he enjoys security of tenure and cannot be removed except for misbehaviour or disability. Nor can the terms of his employment be altered to his disadvantage.

However, that does not prevent him from being given additional benefits by the executive. The most obvious discretionary benefit today is in the conferment of titles.

In England, every High Court judge is knighted, every Court of Appeal judge is made "The Right Honourable" and every Supreme Court judge without exception gets the title of "Lord" or "Lady".

But in Malaysia, there is no standard system of titles for judges. A judge who is showered with federal titles will naturally be regarded as being a favourite of the executive, whereas if a senior judge retires without any federal title, it will generally be assumed that he has displeased the executive.

The inconsistent awarding of titles within the gift of the executive is detrimental to public confidence in the independence of the judiciary, and has even led to public scandal.

It is high time that the judiciary, the executive and the legislature take concrete action to improve public confidence in the independence of the judiciary.

The setting up of the Judicial Appointments Commission has been one positive step in recent years. It should be followed by further confidence-building reforms.

> The writer is a young lawyer. Putik Lada, or pepper buds in Malay, captures the spirit and intention of this column – a platform for young lawyers to articulate their views and aspirations about the law, justice and a civil society. For more information about the young lawyers, visit www.malaysianbar.org.my.

Will PAS be able to transform itself?

Posted: 27 Oct 2011 07:31 PM PDT

The Islamic party can rule Malaysia if certain crucial issues are addressed urgently.

What PAS has not done successfully is to articulate and implement new economic measures to help the Muslim community. They must have a group of economists and technocrats to explain how they can govern better than Barisan Nasional; how they can uplift the lot of Muslims in Malaysia.

Zaid Ibrahim, Free Malaysia Today

The Himpunan Sejuta Umat (Himpun) rally was held recently, ostensibly to protect the Muslim faithful from scavenging Christian evangelists. Himpun supporters believe that as many as 250,000 Muslims have deserted their faith as a result, and those who gathered at the Shah Alam Stadium for the rally were there to say they want the government to stop this Muslim exodus.

Of course, the gathering was not just organised to save Islam, but also to enable a certain political party to shore up its faltering support. In politics, when everything else fails, you ride the religious bandwagon. Still the concern of some Muslims to attempts by Christian groups to induce vulnerable members of the faith to convert must be addressed. The gathering may be small, but the message of concern on the issue of conversion is real.

Unfortunately Muslim leaders from both parties seem to think that the remedy to the problem is to punish apostasy. What they should propose is how to make Muslims have stronger faith and belief in their own religion. Don't blame others for our own weakness. Putting in place severe punishment for those who want to walk away from the religion is also futile. You cannot imprison belief and faith; nor deter people from believing just because of the severity of punishment. Look at what the Romans did to the early Christians – they imposed brutal and severe punishment but to no avail.

The good thing that emerges from the rally is PAS refusal to participate. By refusing to participate in the rally, PAS has shown its maturity, one that's suitable for a modern country in the 21st century. This they have done reasonably well. Non-Muslims today trust PAS more than Umno in terms of bringing about racial unity. They have also done better on the religious tolerance score card, as they seem to allow other religions more space to practise their faith.

Posted: 27 Oct 2011 07:27 PM PDT

Umno began digging its grave when it allowed Mahathir to refashion it as Umno Baru.

It is no longer possible for Malay nationalists to continue to harp on the so-called economic weakness of their community or project the Chinese as the bogeyman to foster Malay political unity under one platform, the platform of Dr Mahathir Mohamad's Umno Baru.

Joe Fernandez, Free Malaysia Today

Umno, from time to time, beats the drums of war on "political unity", one of the sacred cows in things Malay. Witness the call for PAS-Umno unity talks and a myriad other stage-managed events since 2008, including, at one time, stomping on a cow's head to rile the Hindus.

Nowadays, these drumbeats are more a ventilation of the Umno activists' ignorance of their party's history, which began with the anti-Malayan Union movement in 1946, although the spiritual roots go further back in the concept of Malay nationalism first espoused by the Jawi Peranakan.

The Jawi Peranakan were the Singapore-born offspring of immigrant Muslims, many of whom came from Kerala, India (see William Roff's "Origins of Malay Nationalism").

All nationalisms are defined by what they oppose. Indian nationalism, for example, opposed the idea of the British continuing to rule over large parts of the sub-continent.

Malay nationalism, meant to draw together the Muslims in Malaya and Singapore into a political movement, harped on the economic weakness of the Muslims vis-à-vis the local Chinese.

Malay nationalism eventually saw the departure of the British from Malaya and Singapore, the regaining of independence, and the birth of Malaysia with the coming together of Malaya, Singapore, Sabah and Sarawak in a greater federation.

Subsequently, Malay nationalism saw the expulsion of Chinese-dominated Singapore from Malaysia for being the thorn in Malay economic and political aspirations, the death of the 1963 Malaysia and Malay re-colonisation in 1965 of Dusun Sabah and Dayak Sarawak, the birth of the New Economic Policy (NEP) and the deviations in the implementation of Articles 3, 152 and 153 of the Federal Constitution. The distortion of the constitution led, ultimately, to a backlash from the Indian underclass in 2007, spearheaded by Hindraf Makkal Sakthi.

Malay nationalism is dead in the wake of that backlash. The new nationalism in Malaysia is that of the Dusun and Dayak against Malay neo-colonialism.

The Chinese, on their part, have more than a few issues to pick with the Malay nationalists for the manner in which they have been running the country since independence.

So, is it any wonder that the so-called Malay nationalists are looking for new imaginary foes?

Himpun failure

The Himpun call for a gathering of one million of the faithful is a case in point of Malay nationalism trying to reinvent itself for the 21st century.

The police, clearly "racist to the core" as more than one commentator has observed, bent over backwards and indeed fell all over themselves in approving the permit for the gathering in record time. Their rationale: "The gathering presented no security threat" and moreover would be confined to a stadium. It is difficult to fathom how the police define "threats to national security".

The Himpun organisers, who claim a membership of four million members, could only muster between 4,000 and 5,000 people. In stark contrast, the old Umno had the total, undivided, unanimous support of Muslims in Peninsular Malaysia and, at one time, in Singapore.

Umno has lost its moorings on the concept of Malay unity, the Himpun gathering being the latest illustration after the hoo-hah over the Bible being in Malay print and Christians calling out to Allah.

The blame for that loss must lie with Mahathir, who stage-managed the court declaration that Umno was unlawful. Had the court discounted the illegal votes of the 30-odd unlawful branches in the 1987 Umno presidential election, Tengku Razaleigh Hamzah would have won hands down against Mahathir.

The declaration allowed Mahathir to bury the Umno of the anti-Malayan Union movement (and Malay nationalism with it) and initiate the offshoot Umno Baru based on his own perceptions and aimed at fostering dynastic politics, that is, the rotation of political power among a few "Malay" families of Indian, Bugis and other origins. Mahathir also buried his arch enemy Tengku Razaleigh by keeping him and his supporters out of Umno Baru.

READ MORE HERE

Kredit: www.malaysia-today.net

Jumaat, 28 Oktober 2011

Malaysia Today - Your Source of Independent News

Malaysia Today - Your Source of Independent News

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