The Chief Justice is trying to narrow the gap in quality between his judges. Stuck with those he inherited, Tun Arifin Zakaria has set up a training institute for High Court judges and is not elevating non-performing Judicial Commissioners.
During the opening of the legal year in 2012, Tun Arifin Zakaria reiterated the promise he made on Sept 11, at his elevation to Chief Justice: “to transform our Judiciary into a world-class Judiciary.”
In an interview with The Star at the Palace of Justice, Arifin spoke candidly on his blueprint for the judiciary and how improving this branch of Government included pruning the non-performers.
There is now a Judges Training Institute under the auspices of the Judicial Appointments Commission (JAC) of which he is chairman.
Arifin said judges determined the curriculum for High Court judges and Judicial Commissioners (JCs).
“The Government has given about RM200,000 a year for their training and there’s an application to increase it to half a million. We identify their areas of weakness or lack of awareness and provide the training. It’s very interactive.”
Since 2010, they have trained 1,021 judges.
“We make sure they attend two to three courses a year,” said Court of Appeal president (PCOA) Tan Sri Md Raus Sharif, who was also present.
The last batch of JCs attended a five-day induction programme covering 13 topics, which included judicial temperament, capital offences, writing judgments, corruption, mediation, land acquisition and case management.
“It’s a fast-changing world we live in and we have to train our judges so we are not left behind,” said Arifin.
“We also have training for our subordinate officers under the Chief Registrar’s Office which complements what is done by Ilkap (Judicial and Legal Training Institute).
“The Government gave an allocation of RM600,000 for this training.”
> The public would like judges to deliver quick and well-reasoned written grounds of judgment so that even if they lose, at least they know why. Have either you, PCOA, Chief Judge of Malaya and Chief Judge of Sabah and Sarawak taken disciplinary action against anyone who exceeded the time limit you set for writing the grounds?
Arifin: “We have. There was one judge during (then CJ) Tun Zaki (Azmi)’s time – we gave him six months and a further extension. After that we asked him to go and he went because he could not perform.
“Recently another left on the same basis, but they go on retirement. With JCs (who are on two-year contracts), we just don’t renew them.
“Some left on their own because they realised they couldn’t do the job. That’s easily seven or eight that we’ve let go.”
“The problem is that some judges (appointed by the King) were already there,” interjected Raus.
Arifin said the recently amended Judges Remuneration Act provides for retirement after five years of service and once it was gazetted, “judges can retire early with benefits, similar to government service.”
“So, we can push them out.”
> So the worse thing involving these judges is non-performance, nothing more sinister?
Arifin: “Yes, just non-performance.”
> But the public is paying the price for these individuals’ incompetence by paying for their pension with their tax money?
Arifin: “It’s not much; it will be pro-rated to the period served.
“It is a choice. Our thinking is that to remove them we would have to convene a tribunal. That won’t be good for the judiciary. Otherwise, the public will keep paying their salaries until they retire.
“In business lingo, we’ll be ‘cutting our losses’.”
> I’ve heard some judges say there is no need for written grounds unless there is an appeal. But not doing so lends credence to allegations of corruption, especially when a panel overturns a major decision but gives no reasons.
Raus: “When we started to clear the backlog in the Court of Appeal there were over 10,000 cases.
“Our priority at the time was to dispose of old cases.
“But now, with the reduction to 3,600 cases, judges have more time. They used to sit 18 days in a month but now it’s 10 days.
“We’ve told them they should give more time to writing their judgments. We encourage judges to give their reasons and write their grounds. They can be brief.
“In public interest cases, judges are expected to write their grounds even when there is no appeal.”
> Is it true panel chairmen discourage dissenting judgments?
Arifin: “No. That’s not our policy. There have been dissenting judgments when I’ve sat.
“I tell judges they are free to disagree. It’s good to have dissenting judgments.
“If the majority is right, the minority judgment would make it clearer that ours is a better view.”
Raus: “COA judges are free to write dissenting judgments.
“However, I think there should be a limit to supporting judgments.
“In those days (height of the backlog), they had so many judgments to write and I said there’s no need to write a supporting judgment, unless you ask my permission.
“But if dissenting, you are free to write it. In the COA, a dissenting judgment in a civil case is a factor to be considered by the Federal Court in granting leave to appeal.
“There’s no control, that everyone must agree, but of course they must discuss their decision.”
Arifin explained that when one judge writes a judgment, he has to circulate it to the others on the panel: “So they have the benefit of your views.”
Raus said his judges had agreed that they would write their judgments within three months and if they needed more time, they would have to get his permission.
There is a list of CAV (curia advisari vult or reserved) judgments and who is supposed to write them.
“We monitor closely and if there’s a long delay, the judge will be told to get on it,” said Arifin.
> Which agencies vet candidates for appointment? Is there a similar process before promotions?
Arifin: “The Malaysian Anti-Corruption Commission (MACC), Royal Malaysian Police, Companies Commission of Malaysia and Malaysian Department of Insolvency are all involved in the vetting, financial and/or otherwise, of candidates for appointment and promotion.”
> Have they given all the new appointments/promotions after the new JAC team came in this year a clean bill of health financially?
Arifin said the agencies had, “to the best of their knowledge and to the full extent of their authority exercised within the ambit of their powers, vetted and cleared all candidates for appointment or promotion by the JAC.”
Asked whether asset declarations were a one-off act, Arifin said no, that it is also required when a judge is due for promotion or where there is a change and/or increase financially and/or otherwise.
According to Section 9 of the Judges’ Code of Ethics (COE) 2009, a judge shall, on his appointment day or any time thereafter as required by the Chief Justice of the Federal Court, declare in writing all his assets to the Chief Justice of the Federal Court.
> Are asset declarations passed on to the MACC for verification?
Arifin: “The asset declaration of any judge will only be passed on to the MACC if a request to the CJ is made and to assist the MACC in an ongoing investigation.
“Based on the COE, a judge’s declaration of assets is only to the CJ. The CJ retains the sole discretion in the dissemination of such information.
“This is to maintain the independence and integrity of the judiciary whilst also ensuring it is free from extraneous influence, inducement, pressure, threat or interference.”
> A while back, you said the MACC was vetting judges’ declaration of assets. How is that coming along? What happened to their inquiries/investigations into the reports lodged by then Bar president Lim Chee Wee? Has the MACC cleared the judges who were implicated?
Arifin: “Chee Wee came to see me and asked whether he could lodge a report on some judges. I told him he is free to do so.
“If there are allegations against a judge, the MACC is free to investigate. Judges are not above the law.
“Subsequently, the MACC told me the investigations are still ongoing.
“After that, I have not had any report back from the MACC. I don’t think the MACC has closed the file. They will continue to monitor.
“As far as the asset declaration is concerned, if it is too big, I ask them and they normally explain where it came from. Whether I refer (to the MACC) or not is my prerogative. I can’t disclose that.”
> Has the MACC asked you for the declarations of those whom complaints were lodged since they would need a baseline to compare any accrued assets against?
Arifin: “They mentioned the complaints to me but I don’t think they asked me for the declaration of assets.
“I want to make it clear that judges are not above the law and the MACC does investigate judges. They don’t need my permission to do that. They are independent, as we are.”
> What is the judiciary’s solution to the jurisdictional conflict between the civil and syariah courts in conversion cases?
Arifin: “We can’t issue a policy direction. We will decide cases on a case-by-case basis because the facts will vary with each case. It may be difficult but we will decide.”
> But some judges just say “sorry, I can’t decide, I don’t have jurisdiction”.
But they can appeal, replied both Arifin and Raus.
> Do you think we should have judges from the civil court tumpang in the syariah appellate court?
Arifin: “I sit in the Kelantan syariah court in appellate matters.”
> How come?
Arifin: “I’m from Kelantan. I was appointed by the Ruler. I’ve been there for many years. I can see both sides. Whatever it is, when it comes to a conflict of laws it is not easy.
“It’s not just here, it is a universal problem. We try to do justice as far as we can do based on the facts.
“It’s more difficult in Malaysia because of Article 121(1A) because it gives the syariah court exclusive jurisdiction when it comes to syariah matters. And we (civil court) cannot go into (their) decisions and overrule them.”
On the importance of gender equality in appointing judges, Raus said most of the Sessions Court judges were women, adding that more would be sitting in the COA.
“We look at merit first, then seniority, then gender. Gender cannot override merit,” pointed out Arifin.
> What about ethnic diversity – there’s only one Chinese judge and no Indian in the Federal Court?
Arifin: “It’s unfortunate there are not many Indians at the High Court level. But that is changing. We are taking more, including Chinese from outside (the service).
“Before, members of the Bar were unwilling to come because of the unattractive remuneration and conditions of service. Fortunately, more are coming.”
Arifin said that prior to promoting a judge, the JAC would “get all their judgments, reported and unreported” and pass to its members to read.
“We analyse the quality and number of judgments before we confirm or promote someone. We discuss judge by judge quite robustly.
“Every promotion exercise, we go through the whole list. We can’t just nominate one or two – under the JAC Act, we must give reasons why some should be promoted or not.”
Raus said JAC members could ask why someone was bypassed and they would have to answer.
“We have probably bypassed some 30 judges but that’s because we go by merit,” stressed Arifin.
> A very senior and competent COA judge has missed another chance to go up. Did JAC recommend him to the Prime Minister?
Arifin: “The JAC makes recommendations. It is up to the PM under the Federal Constitution whether he accepts or not. It is his prerogative.”