Change in political winds restoring faith in Malaysia's judiciary, says former appeals court judge

R. Loheswar
Datuk Mah Weng Kwai speaks during the Selangor Bar Council’s inaugural Civil Law conference in Shah Alam February 14, 2020. ― Picture by Yusof Mat Isa

SHAH ALAM, Feb 14 — Malaysians are regaining their faith in the nation’s judicial system since the change in the political landscape, says Datuk Mah Weng Kwai.

The former Court of Appeal judge said restoring the people’s faith in the judiciary took a long time, but with less political interference over the past few years, the judiciary is now showing more independent thought.

“I think we have come some way since 1988 and the Tun Salleh Abbas case. For a good 20 years, the judiciary was seen through a negative lens after that incident.

“But I think things are beginning to improve, and quite quickly too,” said Mah when met at Concorde Hotel after giving a class on “pleadings” to around 200 law practitioners at the Selangor Bar Council’s inaugural Civil Law conference today.

The 1988 Malaysian constitutional crisis (also known as the 1988 judicial crisis) was a series of events that began with Umno party elections in 1987 and ended with the suspension and eventual removal of the lord president of the Supreme Court, Tun Salleh Abas, from his seat.

The Supreme Court in the years leading up to 1988 had been increasingly independent of other branches of the government.

 Matters then came to a head when Tun Dr Mahathir Mohamad, who believed in the supremacy of the executive and legislative branches, became prime minister.

 Many saw his eventual sacking of Salleh Abas and two other Supreme Court judges as the end of judicial independence in Malaysia.

 Since 1988, there have been regular calls for an official review of the government’s actions throughout the crisis. In 2008, newly appointed de facto law minister Datuk Zaid Ibrahim said the government should issue an open apology to the sacked judges, calling the government’s actions during the crisis “inappropriate”.

Not long after that, then prime minister Tun Abdullah Ahmad Badawi called the crisis one which the nation had never recovered from, and announced ex-gratia compensation for the sacked and suspended judges.

Fast forward to today, as a barometer to justify his remarks, Mah said all one needs to do is take a look at the applications for appointments as judicial commissioners.

Mah is a member of the nine-member Judicial Appointments Commission (JAC), a commission tasked to carry out functions such as receiving applications from qualified persons seeking to join the judiciary, and selecting suitable candidates to be recommended to the prime minister for appointment as judges.

Mah said that lately there has been a surge in applicants from the Malaysian Bar seeking to join the judiciary as judicial commissioners, whereas in the past, the applicants were predominantly from the judicial and legal service.

“Many asked these applicants why they were applying to be judicial commissioners and their answer was they would like to join the bench, they felt they would be looked upon positively, good things are happening especially on the independence of the judiciary, which are all good indicators the judiciary is on the right track,” he said.

Those from the Malaysian Bar are lawyers in private practice, while the judicial and legal service refers to court officials and legal officers who are in the public service.

Those who are appointed as judicial commissioners exercise the functions of a judge in the High Court. The judicial commissioner position is not a permanent post, and those appointed to this post stand a chance to later be appointed as a judge based on their performance.

When asked if the change of government had helped to restore faith in Malaysia’s judiciary, Mah said this was a possibility, but the signs of improvement had been building up for several years.

The situation, he said, is amplified now because we have a good chief justice (CJ) and more independence.

“I would say it didn’t happen suddenly, but with the change of government, there’s a breath of fresh air.

“There’s a feeling of a little more independence, a little more space for independent thought,” said Mah.

“Our CJ is very empathic about quality of work and independence. Obviously, now and again, there are allegations of corruption. But if you hear such things, please let us know so we can investigate.”

“Also, if you compare the situation now to before, there is definitely less political interference like we had years and years ago,” Mah explained.

In order to further improve matters at the appellate court, Mah said when judges agree and come to a unanimous decision, only one written judgment will be presented.

He suggested where there are dissenting decisions, the judges should write their dissenting judgments.

“This is so we get to know what made the judge dissent. To know the grounds. This is the same for the Federal Court,” he said.

“In fact, it happened yesterday with the ‘bin Abdullah’ case. There were written dissenting judgements, so you can see both sides, and as you notice, this is being taken seriously.”

Yesterday, the Federal Court in a majority ruling ordered the government to remove the words “bin Abdullah” from a Johor-born illegitimate Muslim child’s name from his birth certificate, but also reversed a previous ruling that allowed the father’s name to be part of the boy’s name.

This was the majority decision by four of the seven judges on the Federal Court panel in this case, where the National Registration Department was appealing against the Court of Appeal’s 2017 decision that had favoured the Muslim child.

The three other Federal Court judges in the “bin Abdullah” case dissented, with Chief Judge of Sabah and Sarawak Tan Sri David Wong Dak Wah reading out his dissenting judgment to explain his reasons, while Datuk Nallini Pathmanathan read out her separate dissenting judgment that was agreed by her fellow judge Datuk Abang Iskandar Abang Hashim.

* A previous version of this story contained errors which have since been corrected.

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