18 July, 2011

Commonwealth Magistrates’ And Judges’ Conference 2011


Assalamualaikum Warahmatullahi Wabarakatuh and Very Good Morning


Ladies and Gentlemen:

1.         First and foremost I would like to thank the organizer for inviting me to deliver the Keynote Address, on this, the occasion of the Commonwealth Magistrates’ and Judges’ Conference, which Malaysia has the honour of hosting this year.

2.         It is an honour and privilege to be able to address such an august audience consisting of eminent jurists from various parts of the world. Most of us present today, if not all, are united by the common bond we share in the form of ideals and objectives espoused and defended by this unique grouping of nations the Commonwealth.

Ladies and Gentlemen:

Judicial Independence – Malaysia

3.         The theme adopted for this conference “Judicial Independence – Diversity, Pluralism and Challenges in the Commonwealth” is most apt. Allow me to relate the Malaysian experience. As you fly into Malaysia, you would not have missed the catchphrase/tag line of Tourism Malaysia – ‘Malaysia, truly Asia’. The phrase aptly captures the unique multicultural diversity of our nation. At the core of this plurality binding it all together is the Federal Constitution a written social contract entered into by the founding fathers to mould a diverse population of differing religions, races, customs and heritage into one nation.

4.         In the last half century since independence The Federal Constitution has faithfully served as the foundation upon which the nation’s robust democracy was and continues to be built and acts as the bastion for the fundamental rights guaranteed to its’ citizens. The document of destiny establishes the concepts of Constitutional Supremacy, Rule of Law and Federalism while creating an independent judiciary, a framework for multi-party Parliamentary Democracy and a Constitutional Monarchy that have all contributed in no small measure into transforming Malaysia from a low income agrarian economy into a modern industrial upper middle income nation within a generation.

Ladies and Gentlemen:

5.         An independent judiciary is one of the most important reasons for our national achievement; it is a central component of our democracy, as is the case in each of the countries represented here today. In Malaysia’s case the separation of the judiciary from both the executive and legislative branches is clearly laid out in the constitution.

6.         Safeguarding and ensuring the continued independence of the judiciary is an ideal that Malaysia is wholly committed to. It must be said that the Malaysian Judiciary has experienced a fair measure of both accolades and controversy since Merdeka (Independence). The first three decades after Independence were relatively free from turbulence, but the late 1980s saw turbulent changes and controversy, which attracted considerable public criticism and speculation. The erosion of public confidence in the Judiciary was recognised and measures expressly taken to fortify the safeguards of judicial independence.

7.         Raja Azlan Shah (now HRH Sultan of the State of Perak), a former Lord President of the Federal Court put it thus: –

“..Judicial independence is a cornerstone in any democratic country, as every lawyer and politician knows. The judges are independent of all – the executive, Parliament and from within themselves – and are free to act in an independent and unbiased manner. No member of the Government, no Member of Parliament, and no official of any Government department have any right whatever to direct or influence the decisions of any of the judges.

The judges are not beholden politically to any government. They owe no loyalty to ministers. They have longer professional lives than most ministers. They, like civil servants, see government’s come and go. They are “lions under the throne” but that seat is occupied in their eyes not by Kings, Presidents or Prime Ministers but by the law and their conception of the public interest. It is to that law and to that conception that they owe their allegiance. In that lies their strength.”

Ladies and Gentlemen:

8.         It was recognised that judicial accountability would go a long way towards establishing confidence in the system and the judges. The common purpose was to enhance and strengthen the administration of justice and access to justice. Enhancing and encouraging continuing development of judicial skills so as to enhance judicial performance, as well as introducing a diverse range of initiatives to promote and facilitate a transparent, efficient and expeditious delivery system achieved this.

9.         Under the tenure of the current Chief Justice, computerisation of the courts commenced in 2009 with the introduction of the e-Court system, which allows for a more expeditious system of disposing of cases by the use of information technology. Benchmarks were set, caseloads tracked and managed, and specialist courts set up, to name a few. Disposal times for cases were reduced drastically, and this, coupled with the delivery of reasoned judgments, has contributed towards improving access to justice.

10.       Strengthening the Judiciary as an institution is a continuously evolving process. In Malaysia, a pluralist society, it is critical that the courts meet the needs of its citizenry, by improving and increasing access to justice. We have heralded a comprehensive list of reforms that have drastically improved the efficiency of the Malaysian courts. The future of judicial reform is important to ensure the country’s continued economic growth, and to protect the civil liberties and freedom of its diverse, multi-ethnic and multi-religious population.

Ladies and Gentlemen:

Pluralism and Diversity

11.       The co-existence of diverse cultures, races and customs is an immutable fact associated with human existence, Celebrating diversity and pluralism as pre-condition for social progress is an important step in social evolution. In Malaysia we treat diversity as a national asset, a competitive edge that needs to be nurtured rather than controlled.

12.       It is a fact in this era of globalisation that nations and societies throughout the world are becoming increasingly more diverse in terms of culture, ethnicity and religion. This is a cause for celebration as the positive interaction between different communities creates a more varied and tolerant society as a whole. However diversity can also give rise to division and even conflicts, as people from different cultures are not always able to manage their differences. Such potential hazards to the continued evolution of diversity and plurality are to be guarded against. The Commonwealth countries are particularly well equipped to formulate thinking and measures to contribute towards the constructive management of pluralism and diversity. Taken as a whole, the Commonwealth offers a significant body of international law. Our countries span three-quarters of the world covering a diverse population with a rich cultural heritage.

13.       I trust that this forum will provide an amenable environment for inter-judicial dialogue with an eye to exchange views, experiences and ideas on how pluralism can subsist and operate within our jurisdictions without giving rise to considerable conflict. In short how to build a positive and constructive approach to pluralism for the future. Perhaps a common approach may be fashioned, if not a common remedy.

14.       With the growth in the body of international law and the establishment of international tribunals, inter judicial dialogue in forum such as the present provide real opportunities for a robust exchange of views and cognisance of one another’s jurisprudence. Ultimately the aim must be to seek a more coherent approach to diverse differences. One postulation is a pluralist system that accepts different and legitimate choices by governments and institutions, but within the context of a universal system. It has been described in terms of a system that celebrates “difference but remains committed to the existence of universal standards. This envisages a set of minimum rules and the pursuit of common interests that can be recognised and acknowledged by the international community as a whole.

15.       The challenge is to craft a ‘vision’ in which people can live together harmoniously in a society while at the same time being able to maintain, rather than dilute or lose a strong sense of belonging to their particular cultural, ethnic or religious community. As a nation we recognise that the State/government plays a crucial role in the management of pluralism through the formulation of policies, fostering an environment conducive to the national vision and creating a framework for national dialogue. This is how we approach our advocacy of the 1Malaysia national guiding philosophy concept that has been actively propagated throughout the country at all levels in the last few years with considerable success. It promotes unity in diversity.

Ladies and Gentlemen:

Origins of Pluralism in Malaysia

16.       Pluralism has subsisted in Malaysia for some considerable time. There existed kingdoms and sultanates long before the arrival of the colonial powers. There were at least four colonial powers in the country before it achieved independence. Notwithstanding that the British influence on the legal system had the greatest effect and is evident to this day. Malaysia possessed its own legal systems, which co-existed and operated independently prior to the arrival of the colonizing powers. The system was premised, inter alia, on Islamic law and unwritten law based on custom and tradition, although it is said that these laws were probably not in any systematic form.

17.       With the advent of British rule, and the introduction of the Charters of Justice in 1807 and 1826, the law of England as it then existed, was introduced into Penang. This was the case although there was provision that English law was not to be applied except when the local situation allowed it. While there were no clear provisions in the Charters that expressly imported or imposed English law, the courts in practice construed the Charters as having introduced English law into the locality.

18.       As a consequence the earlier plural system whereby the various communities utilised their own customary laws was systematically eroded, culminating in the ruler’s powers being removed under the Judicial Commissioners’ Regulations and Order in Council in 1896 and replaced by the office of judicial commissioner. The position of Islam and Malay custom however remained secure.

19.       English law took root then spread into Malaysia, as described by R.H. Hickling “…as a tide, at first a gentle movement in a few places and then as a powerful surge challenging the entire coast and its estuaries.” Its influence spread from Penang, Malacca and Singapore into the Malay States, and with the expansion of trade and commerce, the need for a law common to the whole region was acknowledged and implemented.

20.       However notwithstanding the development of a central system of federal law, there was a parallel development of a system of law relating to Muslim matters through the establishment of Shariah Courts. In 1919 the British introduced the Courts Enactment 1919 which created a hierarchy of courts. In this hierarchy the Courts’ of Kadhi (the precursor of the Shariah courts) were placed second last in the hierarchy. The Kadhi’s Court remained despite subsequent legislation relating to alterations in the hierarchy of the court system. As a consequence non-Islamic laws were placed under the civil court’s jurisdiction while Islamic matters were left with the Kadhi’s Court and Islamic laws were applied. At Independence in 1957, the Reid Commission, which drafted the Federal Constitution, allowed this legal regime to continue. Hence there is retention of the segregation between the two court systems, namely the civil and Shariah courts, which run in parallel.

Ladies and Gentlemen:

21.       Unlike the civil court system, which is a federalised court system, the Shariah Court is primarily established out of state law and Shariah law is a matter of state law. The Shariah courts are state courts created by state law (except for the Federal Territories) having jurisdiction over Muslims only. The Shariah courts enjoy jurisdiction over Islamic civil and criminal matters. In its civil jurisdiction the Shariah courts hear cases on family and personal matters such as inheritance. In its criminal jurisdiction these courts have jurisdiction over matters pertaining to offences against Islam. Their penal jurisdiction however is very limited, not only in relation to the types of triable crimes but also in terms of the meting out of punishment. In Malaysia therefore the dual legal system subsists and operates largely successfully, although conflicts do arise from time to time.

22.       Most countries of the Commonwealth would have had a different legal system introduced into their countries when colonisation took place, as I have described in relation to Malaysia. With the introduction of the common law system, the customary laws of the people were relegated largely to personal matters. In many, if not most instances, recognition was accorded to these customary laws by providing statutorily for these laws to be administered alongside the general system. In this country, as I have described, the Syariah court system developed to deal with Islamic law. Similarly in East Malaysia, the native courts deal with the customary rights of the indigenous people. In fact in Malaysia, pluralism has developed further so as accommodate the introduction of Islamic banking and insurance within the civil law framework.

23.       While we have specific provision for the Syariah Courts and the native courts which allows for a separate adjudication system which operates parallel to the civil system, some countries may not have such provisions, necessitating the adjudication of received law and customary or religious laws alongside each other. And this is where problems of conflict arise, as has been the case in this jurisdiction too.

Ladies and Gentlemen:

24.       In the final analysis above all else the Commonwealth is a group of countries that is shaped, by the total sum of all its constituent members. It is in a unique position to help make the world a better place by advocating what diversity, peaceful co-existence and constructive engagement can realise. Our ultimate goal must be world peace based on common interests and the rule of law rather than one shaped by the vicissitudes of national interests and Realpolitik. We must work towards prosperity for all, a world finally free of wants. I have no doubt that this forum will in no small way contribute towards this goal in its deliberations and exchanges, and I wish you the very best in your endeavours.

Thank you.

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