Two Little Men of the Law
Two retired judges want the chief justice of the Federal Court to discontinue the practice of appointing managing judges to supervise High Court judges as “it is against the law” in the words of retired justices Gopal Sri Ram and Mohd Hishamudin Mohd Yunus . The two former judges further criticized the practice saying in a recent article that the current practice amounted to :
“an interference in the independence of the judges of the High Court as High Court judges were supposed to be left to manage their own court.The immediate superior of the High Court judges, the Chief Judge of Malaya or the Chief Judge of Sabah and Sarawak should not interfere with the assignment of cases, such as transferring files from one judge to another”.
Gopal Sri Ram said the current practice of having managing judges from the Federal Court or Court of Appeal to oversee High Court judges was against Section 20 of the Courts of Judicature Act 1964 (CoJ Act) saying “the provision stated that the distribution of business among the judges of the High Court shall be made in accordance with direction given by the chief judge of Malaya or of Sabah and Sarawak” and further that “The appointment of managing judges also eats into the power of the chief judge and renders him ineffective,”.
Gopal Sri Ram’s statements come in the wake reports last week that a new judge would hear the defamation suit by Bersih 2.0 Chairperson Maria Chin Abdullah against Red Shirts leader Jamal Yunos.
ANALYSING THE JUDGE’S COMPLAINTS
It is either that the reporter of this particular piece as carried in Free Malaysia Today the online portal has misquoted the two judges; or that Gopal Sri Ram former Court of Appeal Justice is confused in his own mind as to what the particular section 20 of the Courts of Judicature Act he refers to, intends or stipulates on the question of judges and the administration of the courts.
The doctrine of judicial independence in this context is Sri Ram Gopal’s attempt at extrapolation and expansion of the section 20 of the CoJ Act into a distorted convoluted mess with a strong political complexion to it.
The Chief Justice is well within his implied and express powers to manage the administrative functions of the courts and judges under him whether his discretion and powers involve the distribution of files or the allocation of cases.
Each judge in his courts also has the duty of ensuring that they are not conflicted or that they at least avoid the potential for conflict where matters that come before them are concerned. Sri Ram Gopal and Hishamuddin Yunos have conveniently avoided dealing that aspect of judicial independence and responsibility in this context on the one hand Gopal Sri Ram saying :
“the immediate superior of the High Court judges, the Chief Judge of Malaya or the Chief Judge of Sabah and Sarawak should not interfere with the assignment of cases, such as transferring files from one judge to another”
In a following and subsequent comment on the same subject in the same published new article he and Hishamuddin Yunos the other former judge, contradict themselves further by saying the following:
“the provision (in section 20 of the CoJ Act) states that the distribution of business among the judges of the High Court shall be made in accordance with direction given by the chief judge of Malaya or of Sabah and Sarawak.”
Nothing in the relevant article and Act precludes or prohibits judges of a higher court such as the Federal Court supervising the conduct of judges of lower courts.
The Act in section 20 in fact reads verbatim as follows:
“The distribution of business among the Judges of the High Court shall be made in accordance with such directions, which may be of a general or a particular nature, as may be given by the Chief Judge“.
Nothing here suggests that such a direction by the Chief Judge may not be made in consultation or cooperation with the the judges of the Federal Court. And nothing in the relevant section 20 of the CoJ Act suggests such cooperation and assistance of the Federal Court may not be procured or given. It is after all not a request to assist in adjudicating on matters. It is an issue that involves supervision of cases management of the administration of justice itself.
COMPLAINTS ABOUT JUDICIAL BEHAVIOUR-JUDICIAL COMPETENCE
It is widely known an accepted especially by the opposition in Malaysia that the judiciary in Malaysia in recent time has left a lot to be desired in terms of the quality of their jurisprudential knowledge and the interpretation of the law in the administration of justice.
And lets not mince words on the subject. That perception of judicial incompetence extends beyond the current crop of serving judges. It goes back to each of the two judges the subject of this article and their colleagues during their time on the bench.
The power to distribute files, manage the business of administration of the courts, appoint hire and fire through delegation of his powers in these matters is clearly within the discretion, power and authority of the Chief Judge (either acting on his own or in conjunction with others. Delegating or outsourcing his powers in this respect (if that is what it is seen as) does not erode any of the Chief Judges powers. It is remains within his powers to withdraw that delegation or the sharing of his duties in this context.
Interestingly the word “business” is not defined in the CoJ Act, a common drafting flaw in Malaysian legislation which results in people like Sri Ram Gopal and Hishamuddin Yunos running amok with their takes on the law.
The distribution of business also entails necessarily the assignment of cases and the transferring of files from one judge to another. Such matters are also within the purview and powers of the Chief Judge in so far as they are of an administrative nature.
Conveniently Sri Ram Gopal and Hishamuddin both highly critical of their fellow judges (which is itself a breach of the constitutional convention and doctrine of judicial independence) are cherry picking the interpretation of the doctrine of judicial independence here and giving it selective interpretation: and they are doing a terrible job of it and a disservice to their personal and professional reputations in the process.
The interpretations of the doctrine of judicial independence (in the context these two former judges appear to articulate the doctrine here) is distorted to make it a none too subtle political statement by the two.
This is Hishamuddin Yunos’ second public foray into an area of the law where he is clearly out of his depth. Sri Ram Gopal is not far behind Yunos in this regard.
A judge, even the Chief Justice, may not interfere with the way a case is run or comment on the merits or otherwise of a case or on the decisions or judgments of any other judge in his courts. That job is for the Courts of Appeal to deal with.
There are many other aspects of Judicial independence which are in this instance being breached by Sri Ram Gopal and Hishamuddin both of who regularly and without a hint of conscience commit.
The media (fourth estate), the state (except in special circumstances), former and sitting judges like the two are, are required to refrain from publicly admonishing, criticizing or commenting adversely on the work of sitting judges.That convention is also an integral part of the doctrine of judicial independence.
Sri Ram Gopal and his fellow former judge Hishamuddin Yunos are unfortunately no paragons of jurisprudential virtue when it comes to the law, the ethics of judges or the understanding and observance of the constitution and the doctrine of judicial independence.
It ought to scare any reasonably minded individual as to what drives and motivates the mindset behind the decisions and legal arguments of the likes of Sri Ram, Hishamuddin and other judges in Malaysia. It appears their ideas of justice are measured by political loyalties and not by their knowledge, prowess or skills in the administration of justice.