1 Interview with CJ, PCA, CJM, CJSS 2 24 September 2018 3 4 5 By Yeo Yang Poh, 26th President of the Malaysian Bar (2005-2007) 6 For the Bar Council 7 8 Acronyms: 9 10 CJ : YAA Tan Sri Datuk Seri Panglima (Chief Justice of the Federal 11 Court of ) 12 13 PCA : YAA Tan Sri Dato’ Sri Ahmad Bin Haji Maarop (President of the Court of Appeal) 14 15 CJM : YAA Tan Sri Zaharah Binti Ibrahim (Chief Judge of Malaya) 16 17 CJSS : YAA Datuk David Wong Dak Wah (Chief Judge of and Sarawak) 18 19 YYP : Yeo Yang Poh (26th President of the Malaysian Bar: 2005-2007) 20 21 22 23 YYP First of all, may I clarify that I am here on behalf of the Bar Council, at the request of 24 the Bar President. The Bar sends its congratulations to all 4 of you. This interview by 25 the Bar is a tradition that was started by Tun Zaki. If I may be permitted to address 26 some of the topics that the Bar is concerned about; I will then invite either the CJ or 27 any of the others to give their views. 28 29 Permit me to start by saying that, since May, the Bar’s perception is that the general 30 Malaysian public has expectations of positive changes in various aspects of 31 governance, as well as of public life, of law reforms, and the like. Judiciary-wise, as 32 an institution, the Bar would like to know what are the directional changes that the 4 33 office bearers have in mind to implement in the short and medium terms? We will 34 come to the longer-term later. 35 36 CJ I will speak first, and everyone will have a turn. For me, there is this IRC report, isn’t 37 it? Institutional Reform Committee. I understand that they have made a lot of 38 suggestions there. Recommendations on how to improve or reform the Judiciary. But 39 of course, at the end of the day, it is for us to also look at it, whether it is doable or not 40 doable. But there is one thing that keeps lingering in my mind – everybody seems to 41 say that there is a lack of confidence in the Judiciary and so forth, but no one has 42 actually come out and said, look, 1, 2, 3, 4, these are the indicators that there is no 43 confidence in the Judiciary. 44 45 Most of the time, you read in the blogs, social media, you know? That is the problem. 46 In the Judiciary, there is always a winner and a loser in any court case. Winners will 47 never say anything. Loser will find a way, and find reasons. That is the problem. We 48 find it very difficult to answer the question, you know? “How do you win back public

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1 confidence?” In the first place, there is no evidence of what are the things that we 2 need to do. It seems to be a perception, if you ask me. But of course, there is always 3 room for improvement. There is no question about it. 4 5 So, we have been scratching our heads. “No confidence” – what is that? Because the 6 number of cases that have been filed has increased. Civil matters last year are almost 7 1.5 times more. 8 9 CJM I am just looking at Muar, for example, in 2018, until the end of August, 857 civil 10 cases. 11 12 CJ In Muar alone. 13 14 CJM KL, civil cases, 2,000 over cases filed. 15 16 CJ Compared to previous year, we are doing comparison. If you go by physical evidence, 17 that is the situation. Is there a decline in public confidence in the Judiciary? I do not 18 know. What do you think, Tan Sri? 19 20 PCA I would fully support that. In saying so, I am speaking for myself, we are not actually 21 trying to be defensive. When I say this, maybe you will say that I am trying to be 22 defensive for the Judiciary. But I think what the CJ has said is true, absolutely true. 23 24 You all always talk about what “loss of confidence in the Judiciary”. Who says so? I 25 mean, you look at the social media? Social media does not represent members of the 26 public. Even if you go by the voters, how many voters are there in the country? How 27 many million voters? That also does not represent the majority, I must say. Is there 28 such evidence? 29 30 At the same time, the Judiciary, I think we are working. As the CJ said, and Tan Sri 31 Zaharah, cases are on the rise. Even in the Court of Appeal, the figure, I think by 32 registration, it is also increasing. The High Courts are working hard, more cases 33 disposed of, that is why there are a lot of cases in the Court of Appeal. I have to say 34 that, in fairness. 35 36 I mean, a lot have been said about the Judiciary. But this is my natural thinking. You 37 say “perception”. Of course, we react to it. But to be fair to the Judiciary, where is 38 that “loss of public confidence”? Where? 39 40 YYP As an interviewer, my job is to get views from all the 4 of you, rather than proffering 41 my own views. But sometimes, I might have to offer some suggestions, in order to 42 engage all of you in further discussions. 43 44 The 2 points I would at this stage like to make are that, to me, the increase in the 45 number of cases filed is not a good indicator; because it is not something that litigants 46 have an alternative. If they cannot resolve a dispute, they have no choice but to file 47 cases in court. Those who have contractually agreed to go for arbitration, will go for 48 arbitration. But it may end up with judicial review cases in court too. 49

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1 I would like to invite your thoughts on that, point number 1, which is that an increase 2 in cases filed is not a good indication of confidence in the Judiciary. 3 4 The second point I want to make is this. Confidence, like respect, like trust, all these 5 share 2 commonalities. One is that they involve a matter of perception. That I 6 definitely agree. The other is that it has got to be earned, from the recipients’ point of 7 view. 8 9 For example, Mr. A maybe a trustworthy person; but his community does not trust 10 him. That may not be what he is; that could be a matter of perception, as you have 11 pointed out. However, that is something that still has to be addressed. You could have 12 a perfectly honest person, but people do not trust him. 13 14 CJ That is the thing. Sad thing, isn’t it? 15 16 YYP But, still, we have to address that? 17 18 CJ There is now a programme, where they actually do a survey. It has been done, even in 19 Myanmar. They actually do a public survey, on confidence in the Judiciary. Quite 20 interesting. They do it from the lawyers, from the judges themselves, and also from 21 the stakeholders and so forth. Then, there is something to look at. But we have not 22 done it in Malaysia. So, when they say the public is losing confidence, it is so 23 difficult to answer that. If I were to say, we have lost confidence in the legal 24 profession, how are you going to answer? 25 26 YYP Tan Sri, it is a very interesting thought, if the Judiciary as an institution wants to head 27 in that direction, which is to have a mechanism where you can have some sort of 28 criteria to put your finger on the pulse, rather than just a general statement. One area 29 could be for the Bar and the Bench to set up a mechanism, internally. If someone has 30 certain issues with a proceedings, we can view the video-record. That would address 31 the issue of a criticism being too general or ambiguous. We still have, for example, 32 judges whose temperament leaves a lot to be desired. If that is something that CJ you 33 are able to push forward? 34 35 CJ I was just thinking myself, at the top of my head, a consultative committee with the 36 Bar, the Judiciary, or whatever. 37 38 YYP That would be good. 39 40 CJ That is just my wishful thinking. 41 42 PCA Talking of temperament of judges, we do actually receive complaints. Even as the 43 CJM, I received complaints. What we do is, we do our own investigation. Now, you 44 cannot run away. Because the whole thing is actually recorded in the CRT. But we 45 also do things fairly. We also have gone to ask the judge. Of course people will say, it 46 is your people. But we go with the CRT recording, transcript, put it to him, and listen 47 to his explanation. After that, we follow through whatever is the thing that we want to 48 do. 49

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1 CJ We warn him, we caution him, try not to do again. 2 3 YYP We are looking for improvement. Everyone has good days and bad days. Sometimes 4 when you have a bad day, you are less patient. 5 6 CJ As we get older, we become more patient. Things change as you get older. 7 8 CJSS Actually, I have told Tan Sri that I was looking into the complaint mechanism. I did 9 not have time to actually brief Tan Sri. In New South Wales, there is a mechanism for 10 anyone to complain about a judge. That is dealt with by a committee, and it is an open 11 hearing. They put on their website, to tell the public that that is how complaints are 12 dealt with. At the moment, I think we can all agree that, for the public, the only way 13 they know how to complain is to write directly to us, right? If we can go down that 14 road to set up some sort of mechanism, and make it known to everybody, that if you 15 have got a grouse against a judge, you write a written complaint and we will deal with 16 it using the mechanism. 17 18 The committee is not comprised of judges. It comprises non-judges. Whatever finding, 19 I have actually looked through the website, the majority of it is a dissatisfied litigant. 20 They allege that there was a breach of natural justice, the judge refused to let him say 21 his piece, and all that. 22 23 That may go some way in engaging the public, to show that we are also accountable 24 for our behaviour. So, if you look at the New South Wales Law Commission website, 25 it has got a flowchart there, how it is done and all that. When we go down that road, 26 that is one way. 27 28 When we talk about confidence in the Judiciary and all that, of course the bloggers are 29 interested in those sensitive cases. But here, the litigants themselves, if they say they 30 have no confidence, then they can complain. There is a mechanism. I am supposed to 31 brief Tan Sri on it. Maybe that is one of the ways to deal with it. 32 33 CJ We could even suggest having a hotline or WhatsApp. In East Malaysia, what we 34 have done is to put the name of an officer to complain to, with any complaint, with 35 phone number and all that. We did get quite a number of calls. We called them, we 36 settled it. That was at least my practice in East Malaysia. We put it in front of the 37 court, to say that if you have anything to complain, please call this number. They do 38 call. 39 40 YYP The Bar’s view is also not to leave that kind of complaint-channel to one person. That 41 person may ultimately become too “powerful”, for want of a better word. I would 42 suggest that it be left to a committee. 43 44 CJSS That is the proposal of the Law Commission in New South Wales. 45 46 CJ It is under the Commission, isn’t it? 47 48 CJSS Yes. And they make up the committee, some of them are not from the Judiciary. 49 Outside people who listen to the complaints.

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1 2 CJM My only concern is that, I do not know whether the New South Wales experience is 3 backed by legislation. We do not have that. Our JAC, Judicial Appointments 4 Commission, is solely meant to advise the appointments of judges and promotion of 5 judges. Administratively, perhaps what we can do, it is still channelled in the normal 6 way. But the matter is taken before an internal committee, not external per se. So it 7 would have a situation to avoid what you mentioned, one person having too much 8 power. We can still have a committee. 9 10 At my level, for example, I have a few managing judges for certain states. We have 11 regular meetings. We do raise certain issues, without naming. If an individual judge is 12 concerned, then the managing judge will be asked to look into it. If it is serious 13 enough, I will personally speak with the judge concerned. But we can have a 14 committee, internally. 15 16 YYP The Bar would suggest that the committee be not entirely internal, and that it is not 17 entirely made up of judges. 18 19 CJSS The trouble is, actually what Tan Sri Zaharah has mentioned, under the Ethics 20 legislation, everything goes to the CJ. But I suppose we can get around that. The CJ 21 can say, look, even though the final decision is mine, I want people to help me come 22 to that decision. So, from that point the CJ can form a committee, using members of 23 the JAC, or the CJ could co-opt somebody else. 24 25 The thing is, when you have a hearing like that, the complainant is being heard, rather 26 than a letter writing in. It is different. You write a letter in, we discuss, no. He feels 27 that he has not been heard. If that person is given an opportunity to be heard, that to 28 me will go a long way to actually engage the public, that we are accountable. If you 29 think our judges are not behaving, you can tell us. 30 31 YYP I agree. It is not easy for a lay person to appear before a committee of judges. Very 32 few want to face that. 33 34 CJ I think we can go along that line. 35 36 PCA The theme of your sentences, your opinion is that this committee should not comprise 37 of judges. I do not know why there is this thinking. If it is judges, then there is 38 already a perception that they are going to be in favour of the judge. That is what I do 39 not understand. That is number 1. 40 41 YYP May I correct myself, Tan Sri? 42 43 PCA Wait. Before that, I talk and then you answer me. There are already laws in place, as 44 it is now. You see, there is already a mechanism in place; that is why. Whether it is a 45 good mechanism, it is something for you to think about. But there is already a 46 mechanism in place. If there is a complaint, a complaint can be in so many different 47 forms, every complaint you go to this committee, then we are doing nothing but to 48 satisfy the public, by looking at the complaints. That is why there is a filtering

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1 mechanism. The law is put in place, under the Ethics. If there is any complaint, it will 2 go to the CJ. 3 4 To me, what is wrong with that, if the person is in charge? Of course, certain CJ, 5 maybe members of the public have certain perceptions. But otherwise, this 6 mechanism, if you have any complaint, you go to the CJ. He will decide whether the 7 complaint is serious enough to warrant a tribunal under the Constitution to be set up. 8 It is already there. If he thinks the complaint is so serious that warrants the judge to 9 be kicked out from the system, ok, go to the tribunal. And he is also empowered 10 under this particular law, if he thinks that the complaint is so serious to warrant a 11 constitutional tribunal, then he will form a committee. 12 13 There is also a law put in place there, pursuant to the Constitution. A committee to 14 consider whatever is the complaint. The only thing is that, this particular committee, 15 the sanction that can be meted out is not the sanction where you can impeach a judge. 16 I think so far the sanction that can be imposed is, I think, reprimand and suspension. 17 These are all legally in place already. And then, the committee, who are supposed to 18 be the members, are also spelt out there. I think, if I am not mistaken, top 4. Maybe 19 that will go against your thinking that, if it is judges, it is not good. Because the 20 presumption is always that. I am sorry to say that. I think that is not good, because 21 you start from a wrong footing. A CJ is a CJ. 22 23 YYP May I respond to that? 24 25 CJ Please. 26 27 YYP First, I need to correct a misperception. The Bar’s view is not that the committee 28 should not comprise judges. That is not the Bar’s view. The Bar’s view is that the 29 committee should not be solely comprised of judges. So the top 4 are still there. We 30 only want laymen’s participation in the committee as well. 31 32 PCA It does not matter. As I said, the mechanisms are already there. 33 34 YYP Secondly, we are aware that there is a JAC. We are looking for ways to improve it. 35 36 PCA JAC, sorry, as Tan Sri Zaharah has said, I am not against JAC. The power, as it is 37 now, is only to assess the selection of judges, for the purpose of recommendation to 38 the PM. I know, one of the sore points with this appointment actually is the power of 39 the prime minister to appoint. I think that is the main thing. So, the JAC cannot do 40 anything. They can suggest 10 names, the prime minister says no, I want to appoint 41 these 2. He has got the power under the Constitution to do it. So it goes to untangle 42 that power first. 43 44 YYP I was coming to that issue later, but this maybe a good place to come to it right now. 45 46 CJ Hold on first. I would like to pick up this, how to handle with complaints. We want to 47 look into what Datuk David said. I think that is a good idea. I know it is already there, 48 the existing one, but there is always room for improvement. 49

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1 PCA Ya, I am highlighting only. 2 3 CJ That is the law. 4 5 PCA There is already a law. If you think that is something you want to improve, it is 6 something you have to consider. Because we are not here to make decision yet. 7 8 YYP We want the views of the Judiciary, before we put forward suggestions to the AG and 9 the government. 10 11 CJM When you said layperson coming in, who are the persons you are thinking of? 12 13 YYP The Bar has not formulated views on who are the suitable persons. At this stage, we 14 want to know whether there is a will to move in that direction. The criteria will be 15 that they are non-lawyers, but people having the highest respect from the public. 16 17 PCA Whoever better than judges are going to be there. Otherwise, the perception cannot be 18 corrected. 19 20 YYP Tan Sri, sometimes when a person has a complaint, and if the complaint is not 21 addressed, it reinforces his or her complaint. But if there is a process, …..… 22 23 PCA How can you say complaint not addressed? 24 25 YYP I did say “if”. 26 27 CJ We want to address the complaint. 28 29 CJM We are talking about the mechanism. You are talking about getting laypersons who 30 are not judges to also hear the complaints and determine whether actions should be 31 taken, or recommend actions to be taken. My question is, the kind of person, the type 32 of person you are thinking, should be quite adept to decision-making process. What is 33 the legal backing that we have, to enable these persons to come in? 34 35 YYP We have to enact new laws. 36 37 CJM That is the problem. That is why I said just now, the New South Wales experience, I 38 do not know whether they have legislative backing. 39 40 CJSS Let me clarify. Yes, New South Wales has a legislation. What we have is under the 41 Judicial Ethics thing. That power actually rests with the CJ. Between now and the 42 change, I do not know when, we can improve what we have got. There is nothing 43 prohibiting the CJ to say that I have the full power to do it, but to help me to decide, I 44 want to form a committee to engage the public, in a sense that look, now this 45 committee is going to help me. This committee would comprise non-judges, and all 46 that. That is all. Between now and the new legislation. 47 48 CJ In the interim. 49

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1 CJSS In the interim. That is what I am saying. I am not saying that it is backed up by law at 2 the moment. 3 4 CJM That is the problem that I am concerned with. If CJ appoints some committee, and the 5 members of the committee are from outside of the Judiciary, this committee now 6 deals with complaint against judges. You have no legal, judicial, whatever, backup. 7 Now you have this complaint, which theoretically is an internal matter now, between 8 the litigant or whoever, and the CJ now it becomes open to people who are not in a 9 position to be controlled by any law, any legal mechanism. 10 11 YYP Tan Sri, we are not saying that we should have a committee full of all laymen. 12 13 CJM I am not saying that either. I understand that. You can have the top 4, but when you 14 bring in an outsider into the committee, that outsider is now privy to a lot of 15 information. So, how do we protect that? There is nothing to control that outsider, in 16 relation to what he does or does not do. Because there is no law, no legal mechanism. 17 There is also nothing to protect him. 18 19 PCA That is the reason why, in addition to what she has said, as far as I can understand, 20 unless and until there is a law in place to put what New South Wales has, between 21 now and that law, I think you have got to live with the law that has been with us. As 22 the law now stands, I do not think there is a way for you to get somebody who is not 23 actually provided for under the law to be in that committee. For that to happen, you 24 have got to put laws in place. But before that, you have got to make use of the present 25 setup. Maybe you have not used it properly. Maybe you think it is not good enough, 26 maybe you think there should be more tribunals, so be it. 27 28 CJM I think this is something that the Judiciary can engage with the Executive, in relation 29 to how to improve. Maybe get it sooner than later. Because this is something you can 30 do without 2/3 majority. 31 32 YYP Another view that the Bar is interested in getting from the top office bearers is, before 33 talking about enacting new laws, whether or not those new laws are considered 34 desirable, and whether they have the support of the top in the Judiciary? 35 36 CJ We are talking about it. 37 38 YYP That is great to hear. We are certainly not saying that tomorrow we will start the new 39 system. 40 41 PCA We as judges, we cannot be assessing the laws. Our views should not have political 42 things there. We are judges, professionals. We look at the laws. You are asking us to 43 comment on it; that is difficult to do. We are not taking a defensive stand that we are 44 not going to improve. Maybe the way I put things maybe a bit serious. 45 46 CJ We are open to it. If the Bar can come out with a good suggestion, why not? We can 47 sit down and consider it. 48 49 YYP Getting the consultative body going is a starting point?

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1 2 CJ I was thinking about having a consultative committee. We can discuss things. 3 4 PCA I also read somewhere, I suppose, by now, the current thinking, they will dismiss this. 5 I also read a book that says, when we deal with how to discipline judges, you have to 6 be very careful. It should actually be in-house kind of thing. Otherwise, that will 7 actually go to undermine the very integrity and the independence of the Judiciary 8 itself. But as I said, by now, maybe because of the current thinking, they think that 9 one is no more. Now the thinking is different. 10 11 YYP There are different schools of thought. In the USA, for example, judges are subject to 12 public scrutiny, unlike in Commonwealth countries. I think we have dwelled enough 13 on that topic. Can I move to the next topic? 14 15 CJ Please. 16 17 YYP We move on to the JAC, and the processes and the criteria for selection and 18 promotion of judges. The point is taken that we must work with what we have at the 19 moment, no question about it. But for the future, should the JAC be improved by 20 involving not just judges and retired judges, but also laypersons? The AG should be 21 there, the Bar should be represented, and things like that. Should laypersons be 22 represented? 23 24 CJ The danger is, say the AG, they appear before us, before the Courts, you know? Now 25 and then. JAC also deals with promotion and all that. 26 27 YYP Maturity is always a very long road, but we have to make a start. The Bar’s view is 28 that the more transparent a process is, that will be the right direction to go. Both 29 judges and laypersons will become more mature. At the moment, too much power is 30 in one person’s hand, the PM. 31 32 CJ The question now is, if you get the Bar, unless the representative of the Bar stops 33 practising so long as he is a JAC member, he ceases practice, so that there is no 34 question of him being in Court. Because otherwise, it will be very embarrassing. If I 35 were a member of JAC, and a lawyer, I can either abuse it or I can be very deferent 36 and say that I will not come to the Courts. Just to give respect to the judges. 37 Otherwise the judge sitting there will be very embarrassed. 38 39 PCA I agree. I think as far as other eminent persons are concerned, that is something that 40 we can consider. But I think, for the members of the Bar, AG’s Chamber, I think 41 there will be problems. Eminent persons, non-judges, probably. 42 43 CJ Senior lawyers who no longer come to the Courts. 44 45 YYP May I also engage the 4 of you in an alternative view? The public are certainly 46 consumers of the Courts. Most of the time they are consumers through the lawyers. 47 So, the Bar’s feedback, in our view, is most valuable. 48

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1 To us, it is for the transparency of the process. For example, let’s take somebody who 2 is no longer with us, let’s say if our late Dato’ Peter Mooney was made a member of 3 this committee, nobody would have any qualms about that, I would think. Of course 4 it can be subject to abuse. If there is abuse, it should be exposed. That person cannot 5 run away from it. 6 7 The alternative view the Bar would like to present is that, yes, the points that all of 8 you have made are valid, but there are also things to be said for the other side of the 9 argument. Perhaps we would like to persuade the top in the Judiciary not to close that 10 door as yet. Let us discuss a bit further, as there may be merits there. 11 12 CJM As has been mentioned earlier, you have a number of senior members of the Bar who 13 are no longer in active practice. Like CJ said earlier, we do not want people who still 14 come to Courts, who still act for any litigants, whether as a solicitor or as an advocate, 15 to be a member. But you have a number of others, I know of a few. 16 17 YYP That is a good starting point. 18 19 CJ You cannot be putting your president and all that. 20 21 CJM One who no longer represents any litigant. Because you could be acting as a solicitor, 22 still have an interest in the matter. Going to Courts is not necessarily just being an 23 advocate in the Courts. 24 25 CJ Very difficult. But we are open. 26 27 YYP Perhaps we can move in that direction. 28 29 CJ Yes. 30 31 YYP What about a future mechanism for the hearing of objections? For example, if Mr. A 32 or Mdm. A is to be considered for a judgeship, and if someone, who has known Mr. 33 A or Mdm. A for a long time, thinks that he or she is not a suitable person, can there 34 be a channel for him to come and say, CJ, can you please look into this objection? 35 36 CJ Do you know it is being done now? 37 38 YYP Yes, but in an informal way. 39 40 CJ No. They do write in. They write in and submit a formal complaint – this fellow is 41 not fit to be a judge, and so forth. 42 43 YYP Can we strengthen that process? A lot of the time, the public does not know who the 44 JAC are considering. They only come to know, when someone is appointed as a JC or 45 judge. 46 47 CJ But how many of us would like to be exposed to the public? The lawyers would not 48 want, you know? I do not think they want that. If me, I do not want. You can keep 49 your post. You see in the US, how bad?

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1 2 YYP Kavanaugh? 3 4 PCA Kavanaugh is a problem also. Of course there it is very political. Even before 5 Kavanaugh, also same problem. One fellow was not even confirmed. 6 7 CJ Destroyed, you know? Officially destroyed. 8 9 YYP We are not suggesting anything near that. We are saying, let’s take a small baby step 10 forward. 11 12 CJ There is even talk about appointment of judges by a parliamentary select committee. 13 Do you know that? 14 15 YYP I’ve heard about that. 16 17 CJ If you have that, I think you would not get the best brains. With all due respect, 18 nobody would want it. I would say, thank you very much, you keep your post. 19 Because even though you might have the cleanest life, people would create stories. 20 Nowadays, it is so sad. The social media is horrible. 21 22 CJM So the question is, do you want to create a venue or a forum which enables that? That 23 is what I am saying. Do we want to create that kind of forum by having an open 24 mechanism, or an open forum, to enable anyone to come and complain about the 25 candidate? My worry is, the idea is good, the question is how do we control it? How 26 do we rein in the monster. 27 28 YYP As a start, rather than making it public, could the person who has an objection be 29 heard, rather than just relying on the cold print? 30 31 CJ Yes. Maybe the JAC can call him in, and listen to what he wants to say. 32 33 YYP The Bar feels that, when you have layperson’s participation, it will actually improve 34 public perception of the Judiciary. The Judiciary will appear very open, that it can 35 have lay participation. Your decision will be looked upon with greater confidence. 36 37 CJ We are actually not possessive about appointments, because it is not up to us. It is up 38 to the PM. So I think this question should be addressed to the PM. 39 40 YYP The Bar has made various recommendations. One of them is that the PM should not 41 be having the prerogative in future. Would that be something that the Judiciary will 42 support? 43 44 CJ But where in other countries it is done by a committee? I think even in Australia, the 45 AG has the final say, isn’t it? 46 47 CJSS Still the PM. PM has the final say. 48 49 CJ New Zealand is definitely the PM.

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1 2 PCA Singapore. 3 4 CJ Singapore is definitely the PM. 5 6 CJM Singapore, the president with the concurrence of the prime minister. 7 8 YYP What about in England? 9 10 CJ England is with the PM I think. 11 12 YYP I do not think so. I think it is by a Commission. But I’ll have to re-confirm. 13 14 PCA Unless you are saying something like in the US. 15 16 CJ In Portugal, I met a Portuguese judge, they said they go by politics there. One for you, 17 one for me. 18 19 YYP I feel that it is not the best alternative to give the PM alone the prerogative. Look at 20 what is happening in the Philippines at the moment. It is not fair to the CJ. 21 22 CJ You have to look at England. After they have adopted this Commission, there are 23 some fellows whom I have heard saying that the system has gone down. Because now 24 they want everything to be represented. They do not get the best brains. Unlike the 25 Supreme Court, I think the Supreme Court is different. They want judges from 26 practice. You have to look at it. 27 28 29 YYP This is the natural juncture for me to come to the question of the criteria for judicial 30 competence. Of course integrity is very important, but so too is competence. The 31 Latimer House Principles say that the criteria should be made as clear as possible. Of 32 course not listed down like a shopping list. Should we start a process of identifying 33 what are the criteria for judicial competence? For example, is too much emphasis 34 placed on years of service, or years of experience? 35 36 CJM I do not think so. If you look at the number of comparatives, the number of judges 37 who have served certain number of years, and those who have actually been 38 promoted, you will see that that is not our sole criterion. 39 40 YYP In the last 8 years, I would say, that is not your sole criterion. But sometimes there is 41 a perception that, if a person serves in the Legal & Judicial Service for 25 years, he or 42 she is expected to be promoted, things like that. That should not be the case? 43 44 CJ No, no. 45 46 CJM It is not. 47 48 YYP How do you judge a potential judge’s competence? Do you look at his written 49 judgments, or written submissions? They can tell a lot about competence?

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1 2 CJ It is true. But it is very difficult also. If you are from lawyer’s side, he may be a very 3 competent lawyer, but he can be a useless judge. There are a few instances, who 4 cannot even write judgments. After being appointed, the judge could not make 5 decisions. A few instances, we all know. It is quite sad. But they are very good as 6 lawyers. I do not know why. 7 8 YYP Should more emphasis be placed on things like temperament? You could be brilliant 9 in law, but, like Lord Denning said, one of the duties of a judge is to enable a litigant 10 or his lawyer full opportunity to …… 11 12 CJM How do you know the judicial temperament of a person, until he sits on the Bench? 13 That, I think, is one positive thing to say about the judicial commissioner system. 14 You actually can see the person’s judicial temperament. 15 16 CJ I have seen one senior lawyer who was made a judge in a moot, I did not realise he 17 was a different person altogether. In a university moot, you know? He was whacking 18 everybody. This one should never be a judge. 19 20 PCA Even that also, there is at least something for you to consider. But even that also, as 21 the CJ said, not necessary that a very brilliant lawyer will make a good judge. I have 22 also once seen, just because a person was a good senior federal counsel, DPP, does 23 not mean that he will make a good judge either. Similarly, Sessions court judge, same 24 thing also. With all these problems, it looks like the JC-ship, at least, is something 25 that we can work with. 26 27 CJM We have courses for judges, workshops, etc, conducted by our academy. They 28 normally break up into groups. When I was facilitator in a group, I actually went 29 around looking at how they interact. Some, actually, you can see the body language 30 with their group members, some attitude thinking that they are smarter. You can see 31 that. Then you can match against what people said about him or her on the Bench. 32 That sometimes corresponds. 33 34 PCA I also want to complete a bit more on that. Not necessarily a good DPP, good lawyer, 35 makes a good judge. Even there was that fellow, doctorate here, doctorate there, it has 36 been proved. 37 38 CJ Could not write judgment. 39 40 CJM Not only could not write judgment, could not give a decision. 41 42 YYP If I may raise some feedback from the Bar. It is not true that a lawyer will complain 43 about a judge only if he loses a case. Many times a lawyer on the winning side 44 actually feels that his opponent has been given too little time, or has been brushed 45 aside, or has not had a fair chance in the case. 46 47 Also, if you look at an individual lawyer’s comment, it may be subjective. But if you 48 look at the collective comments of the Bar, very often there is a high degree of 49 objectivity. That is the feedback I would like to give.

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1 2 Perhaps I should now move on to judicial training. After a person has become a JC or 3 a judge, should continuing legal education be made compulsory? 4 5 CJ We have been doing it for the past 2 to 3 years. You may not be aware of it, but we 6 have. 7 8 YYP Not just on law? 9 10 CJM We do. A few years back, for example, with the cooperation of, I think it is the 11 gynaecology society, we actually had a session here, where they actually acted out 12 somebody in labour, to help the judges deal with medical negligence cases of ladies 13 in labour, that kind of thing. We have had that. We have had the Security 14 Commission for example, Bank Negara coming in to have workshop and seminars 15 with us. 16 17 YYP What about expanding it to things like getting feedback from litigants and lawyers, 18 e.g. on the treatment they would like to get from judges? Looking at the consumers’ 19 point of view. 20 21 CJ Judge craft? 22 23 CJM What kind of courses are you thinking of? A few years back also, we had a session 24 with the lawyers and insurance company, we had a 2-day session with them. They 25 came in to deal with cases we have decided on accident, motor insurance. We had a 26 really fruitful 2-day discussion with them. They actually raised cases that have been 27 decided, even at the appeal courts level. That is one kind of direction we know that 28 we have done. But what kind of interaction are you talking about? 29 30 CJ I think he is talking about judge craft. 31 32 YYP Yes. Temperament and all that. For example, a good judge can be in the job for 30 33 years, without being constantly reminded of why he or she is there. Sometimes, 34 because you have done a job for so long, it becomes routine. Sometimes you need 35 someone to come and say, but Sir, if you recall that particular incident, if you could 36 have spent another 3 minutes of your time, instead of brushing certain persons off, 37 and if you could have heard him for another 3 minutes, that person would be satisfied. 38 39 PCA It depends also on how the 3 minutes is used by the lawyer. 40 41 CJM Both of us attended a workshop in the UK. They had something like the Judicial 42 College of England, and they had this course for Commonwealth judges. They 43 actually had the service of a theatre company. The theatre company only assists the 44 judicial college. They present the welfare department, to enact situations to help the 45 judges to see how would you perform in this kind of context, and the others would 46 look, and give comments. Not just in conflict situation. That is one area. Also, given 47 this particular case, how would you decide. Then the conflict situation is where they 48 actually act in front of you, as if you are in Court, and you now sit in judgment, your

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1 fellow participants observe and record that, and then comment on how you have 2 performed. 3 4 YYP That is precisely what the Bar is looking forward to. 5 6 CJM But the trouble is, as I said, they have a professional outfit with professional actors. 7 The professional actors, all of them are graduates. Apart from that, they also have one 8 advocate who attended one of the earlier cases helping out. And a few judges who 9 had attended one of the earlier courses actually came in to act as solicitors or 10 advocates whatever. We need to have that kind of support. 11 12 YYP Tan Sri, we can get that kind of support. Of course, funding is always an issue. We 13 can go into that. But, if we first get the support of the Judiciary and the Bar, and now 14 the Executive is much more open to views of the Bar, as well as of the Judiciary, I 15 think that is possible. 16 17 An example that I can give, is the mediation course conducted by the Australian 18 group. It was an eye opener, as to how different parties in the same conflict situation 19 can see the same events very differently. 20 21 For judges, I think that will be very helpful. You can see the different points of view, 22 then come to what you think is the fairest decision. 23 24 CJ That is the function of the lawyers, isn’t it? Not the judge. 25 26 PCA Short term measure, what you have just mentioned, has already been implemented by 27 the Judiciary. In fact, I think the JAC is keeping track of the number of courses each 28 judge has attended. I think it is compulsory for them to attend a number of courses 29 per year. Of course the topics, so far we have concentrated on law topics. Probably it 30 is good to include some of the topics you have mentioned. 31 32 Fund, I think is a problem. The other issue is time. So far, we have done this on 33 weekends, because we do not want to jeopardise the hearing of the cases. We do not 34 want to postpone cases. As a result, the judges have sacrificed their weekends. So this 35 is the issue that you have got to consider. 36 37 CJ What we can do is, the new appointees, we give them more than a week of training 38 on judge craft. 39 40 PCA Which also we have done. 41 42 CJ Induction? 43 44 PCA Yes. 45 46 CJ Last time only about 4 – 5 days. We will give longer this time. 47 48 PCA Maybe to the Bar 4 – 5 days is not good enough, but we have done it. 49

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1 CJ Maybe we can extend it. 2 3 CJM One of the things that you talked about, the non-judicial thing, one of the portions of 4 the course, they actually showed us a video clip of people playing basketball. One of 5 the questions we were supposed to have in our mind was, how many goals were 6 scored. We were all so busy looking at how many goals were scored, that everyone 7 missed the gorilla inside the video. Nobody saw the gorilla, because everybody was 8 busy looking at how many goals were scored. That is what they said happens when 9 you are on the Bench. Sometimes you do not see the elephant in the room, you are so 10 busy focusing on other things, you do not see what is so obvious, because you are so 11 busy looking at the small things. 12 13 PCA This relates to the point that you have just said. Looking at things from different 14 perspectives. Because when you are sitting on the Bench, you are focusing on this 15 view. There could be other interpretation. 16 17 CJ Maybe the induction we can increase the time. 18 19 YYP This brings me to the next issue, which is – are our judges, the good ones, 20 overworked? Is our ratio of judges to population too low? 21 22 In the High Courts, for example, a lot of lawyers do not like to do trials in November 23 & December. Why? Judges want to complete and deliver decisions before 31st of 24 December. Some of them will tell us directly, that they have to do that. 25 26 CJM Not quite true. Because they are on cycle of 9 months, for example. Your 9 months 27 could start in June, which will end next year. So there is no such thing as ending on 28 the 31st of December. 29 30 YYP It is a matter of balance. If you say every case must be finished within 9 months, or a 31 year, it becomes inflexible. 32 33 CJM Speaking as a former managing judge, and now CJM, I have always maintained that, 34 if you have 5% not completed within the time; that is normal. All you need to do is, 35 tell me what you have done. We can monitor whether you are sitting on a daily basis, 36 etc. We know that you are working hard. We do not blame you, if you cannot finish. 37 38 For example, today, I have one judge from KL, the Plaintiff’s first witness has not 39 completed, by now the notes are already 1,000 pages. I said I understand. I know that 40 it cannot be finished within the 9 months period. 41 42 CJM Our problem is the number of cases. I just mentioned to you, Muar, 1 ½ judges 43 basically, 857 cases in a year. How do you think the judge is going to deal with it? 44 45 YYP Therefore, can we say that we need to increase the number of judges, at all levels? 46 Judges are human beings. You cannot just work and work, until you collapse. 47 48 CJM But when we increase the number of judges, the Bar also said that there was too 49 many judges.

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1 2 YYP The Bar has not taken that position, as far as I am aware. We have always promoted a 3 need to have more judges at all levels. But we put in a caveat, that you must have a 4 good selection process; because having more but unsuitable judges will not help. 5 6 CJM May I ask, the increase in the jurisdiction of the Magistrates’ Courts and Sessions 7 Courts, therefore bringing in quite a sizeable number of cases to the Sessions Courts, 8 have that created any adverse, negative perception among the Bar? 9 10 YYP Yes. Some Sessions Judges are really a far-cry from Judges. Secondly, 11 for matters like injunction, they are not equipped. High Court judges are more 12 adequate to handle injunctions than Sessions Courts. 13 14 CJ Injunction is only given to the C grade. They are more senior. We train them. 15 16 CJM Before we amended the law, we had a session. I remember Robert Lazar and myself, 17 we actually had a 2-day session. 18 19 CJ I think we need to have more trainings. This maybe we need the Bar to help. 20 21 YYP Sure, we are always willing to help. 22 23 PCA So this increase in the number of judges, maybe it is something that we can consider, 24 if there is fund. But, along with that, there will be problem also. Apart from buildings, 25 support staffs, not easy. In reality, every day, I think the courts are having problem. 26 Interpreters, difficult to find. Recruitment ada, but not many takers. 27 28 YYP Because of pay? 29 30 CJ Exactly. Even senior lawyers have refused to be recruited as JC. 31 32 YYP We do not simplify or underestimate the complexity of any new suggestion. But if it 33 is a good one, can we work towards it? 34 35 CJ Give it a try. Why not? 36 37 YYP Is there still a KPI? 38 39 PCA There was never a KPI. 40 41 CJ Imaginary. I do not know who came out with it. 42 43 YYP From the Bar’s point of view, I am being frank here, it will be difficult if I were to 44 stand up in a general Bar meeting and say, there is no KPI. I think it will be a hard- 45 sell. 46 47 CJM When you talk about KPI, you must distinguish KPI in the sense that “you must”. We 48 have a target. From the time you get a case, the case registered in court, you have 9 49 months. We have that timeline. But as I said earlier, if you do not complete it, I look

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1 at the statistics, when I was a managing judge. Generally, within the first 3 months, 2 because of case management, JID, etc, 50% of the cases have already been dealt with 3 in the first 3 months. And then the 6th month, you would have about 70% cases gone. 4 By the 9th month, I would have about 93% kind of thing. Just after 9 months, about 5 95%. I do not ask about the 5%. Because I know the judges there have worked their 6 very best to complete the cases. If you are talking about that as KPI, then it is KPI. 7 8 CJ They must have timeline. If you do not have a timeline, 5 years, 7 years. 9 10 YYP Timeline is different. If we do not give ourselves a deadline, things get procrastinated. 11 That we understand. 12 13 CJ That is why we have placed a timeline. That is all. Not the KPI. Do not 14 misunderstand it. 15 16 YYP That is not the perception of the Bar, unfortunately. 17 18 CJM There has never been a KPI. 19 20 CJ Surprisingly, how it came about? Timeline, yes. 21 22 YYP CJ, I can recall that, when I interviewed Tun Arifin, when I asked him about KPI, he 23 said “from now on, we are going to emphasise more on the quality of judgments”. 24 That is on record. 25 26 CJ Yes, he said that. I agree. 27 28 PCA Quality of judgements? 29 30 YYP Not just how many cases a judge disposes of. Judge A can dispose of 200 in a certain 31 period, but disposes of half of it wrongly. Judge B only disposes of 50 in the same 32 period, ¼ of 200, but in each of the 50, he or she takes great care to come to a 33 decision. The Bar certainly prefers B to A. 34 35 CJM Of course. 36 37 PCA So what is KPI? 38 39 CJ How this came about? 40 41 CJSS If I may, when I was a judge, we talked about KPI. Maybe there is a 42 misunderstanding. If KPI means that within 1 year you have to dispose of 1,000 cases, 43 Is that the KPI? There is nothing wrong to say, by certain time, you must finish pre- 44 2012 cases, right? I found it useful, when I was a sitting High Court judge, that I had 45 to finish these cases within a certain timeline. I do not see any issue with that. It is 46 actually good. Because I know I am dealing with justice in an appropriate timeline. 47 48 I think, if you have practised in Australia, which I had, you cannot just come to court 49 and say, sorry, I am getting an adjournment. They would say go away, if you cannot

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1 do it, you go and get another barrister to do it. We do not have enough barristers in 2 our jurisdictions, but there must come a time, I think the Bar has to sort of improve 3 on that. You have to get used to a system that getting adjournment is not the order of 4 the day. 5 6 I know when Tan Sri was the CJSS, he always said 1 year. I always said Singapore 7 and New South Wales are 18 months. I never tried to finish in 12 months. I have tried 8 to do it, but it was not a fixed thing. But surely, if I finish the 2016 cases, the 2017 9 cases within 1 year, the public should be happy. To me, that was a good yardstick for 10 me to comply with. That maybe a KPI for other people, but there was no instruction 11 that in 1 year, you finish 1,000 cases. 12 13 CJM I suddenly remember, initially, in 2009, before we started having the NCC and all 14 that, there was one short period where, in KL, I am not sure about the other stations, 15 where we had the A-track and T-track. The A-track judges were required to complete 16 100 cases per month. The T-track judges were required to complete at least 5 trials 17 per month. But that was a temporary thing, and it was gone by the time we had the 18 NCC, NCvC. That was no longer in place. That could be the source of the KPI. 19 20 21 YYP Allow me to give you the Bar’s perspective. If KPI is as described by all 4 of you, we 22 have no issue wit it. It is both a matter of discipline for lawyers as well as for judges. 23 The Bar’s perception is slightly different. Tan Sri is correct about the A-track and T- 24 track …… 25 26 CJM That was long gone. 27 28 YYP However, from our perspective, a lot of the time it seems to be carried forward. There 29 are judges who tell us privately that they are assessed by how many cases they 30 dispose of. I am giving you this feedback. 31 32 PCA Sorry, assessed by how many cases? 33 34 YYP Say, between A & B, if A has finished many more cases than B, A’s chance of 35 promotion is higher. It could be a misperception on the judges’ part. But, many 36 different lawyers have heard from different judges about this. 37 38 CJSS For myself, my target is to make sure that I finish 4 trials a month. If I do not finish 4 39 trials a month, there is something wrong. That means I am not working. Unless it is a 40 complicated case. 41 42 YYP But you should not be judged less favourably than someone else who finishes 10 43 trials a month? 44 45 CJSS Certainly. 46 47 CJ There are some judges who finish so many cases, but there are so many appeals. He 48 went to the bottom. 49

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1 PCA Because you talk about how many cases, it brings you again back to the criteria you 2 use to confirm a judge, to elevate to a higher post. One is actually disposal of cases. 3 But the way that is put by you is very simple. You finish more cases, you will be 4 promoted. No, it is not like that. We look at the quality. Remember Tun Zaki? 5 6 YYP It think that was Tun Arifin. 7 8 PCA Ok. We look at quality, which is true. Quality of judgments, the number of cases 9 actually published in MLJ & CLJ. For your information, in JAC, there is already a 10 template. Whenever there is an exercise of selection, we have all these data. Not only 11 how many cases you dispose of in a week or a month, how many judgments pending, 12 how many cases you have not given decision, how many judgments have been 13 published in MLJ or CLJ. 14 15 CJ These are the yardsticks. A lot of factors. 16 17 PCA Complaints, temperament. 18 19 CJ So many factors. 20 21 YYP The next issue is the system of empanelment. Can the Bar & the Judiciary jointly 22 look into some system for empanelment in all the courts? 23 24 CJ We have gone into balloting. I have no more choice. It is a balloting system. 25 26 YYP In the Court of Appeal? 27 28 PCA For the time being, 6 panels are doing civil cases, 2 panels doing criminal cases. Out 29 of the 6, of course there are certain panels actually given to do certain cases, like 30 muamalat, shipping, intellectual property and construction. Specialised panels. At 31 one point in time, these so-called public interest cases and constitutional cases were 32 actually handled only by Panel 3, one particular panel. But we have done away with 33 that. Now all these public interest cases are distributed to all panels, by way of 34 running number. The system fixes it. So as far as the 6 panels are concerned, except 35 for the specialised cases I have mentioned just now, muamalat and all those, cases 36 under other codes are divided between these 6 panels by way of running numbers. 37 38 YYP Not by balloting? 39 40 PCA Not yet. I think, there is some problem also. Some complication. But we have done 41 this. Bila running number, ada clerk buat situ. No longer like before. Probably I think 42 this was done from earlier this month. So probably there could still be some cases 43 already been fixed earlier. 44 45 CJ One thing for sure, CJ, or PCA, now we do not pick the panels. 46 47 YYP That the Bar believes had happened previously. 48 49 CJ On the first day we came in, we said no to that.

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1 2 YYP Balloting may be better? The High Courts have had a running numbers system. 3 4 CJ They select the judge? 5 6 YYP One could go and see the person who was handling the numbers. 7 8 CJM It cannot be done anymore. Now it is e-filing. But the downside of e-filing is this. 9 You have one case filed here, tomorrow you have a related case filed in another court. 10 Third person, same subject matter, filed in another court. So you could have 3 courts 11 dealing with the same subject matter, although by different parties. 12 13 CJ But you can consolidate. 14 15 CJM Yes. Then they would apply for consolidation. 16 17 YYP Who decides which panel will hear the consolidated cases? 18 19 CJM Our rule is that, if a case is filed first in court 1, then all go to court 1. 20 21 PCA Court of Appeal is the same thing. 22 23 I think one thing is very clear. For the Court of Appeal, we are sensitive to this. We 24 do not want any more allegations. The first thing they raised was this issue. Why only 25 this panel hearing? Now people do not know which panel will hear. 26 27 YYP The Bar also wishes for more active participation from all members of a panel, during 28 a hearing. Of course, different judges may focus more on different cases. That we 29 understand. But a lot of the times, the other 2 judges on a panel do not even say a 30 word throughout the entire proceedings. 31 32 CJ But we cannot help it if they refuse to talk. 33 34 YYP Perhaps encourage them? There also ought to be more dissenting judgments. 35 Dissenting judgments, to the Bar, is a good thing. 36 37 CJ We are encouraging dissenting judgments, different opinions. 38 39 CJM Sometimes the Court of Appeal & Federal Court, a lot of discussions would have 40 happened before we even go out. When I was in the Court of Appeal, when I was 41 chairing a panel for many years, I would first have at least ½ hour discussion, and 42 then we would already have some kind of preliminary views. So, when we go up, we 43 have preliminary views, and we will hear you. If our views can no longer hold, then 44 we come back and discuss. I was doing commercial cases. Generally, the lawyers 45 who appeared before us would have submitted at great length in commercial cases. 46 We did not need to ask many questions, generally. 47 48 CJ But you will be surprised. Our preliminary views, suddenly when we hear the lawyers, 49 we changed. Completely changed.

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1 2 YYP That is a good thing. 3 4 CJ Yes. In fact, more often than not, that happens. 5 6 YYP More often than not? More than 50% of the time? 7 8 CJ Yes. We have preliminary views. By the time we hear the lawyers, we change, 9 because we are convinced by the submissions. 10 11 PCA That is why we told lawyers, in fact Tun Zaki also told us this, “kau dengar peguam 12 tu, kita bukan tahu semua”. You do not know everything. 13 14 CJ Sometimes we missed certain facts. 15 16 PCA There was one Law Lord from England or somewhere, coming here to tell us about 17 judging, masa Tun Zaki. Dia kata, you have 3 members on the Bench, or 5 members, 18 jangan you ingat the person who keeps quiet tu yang ini tau, itu yang bahaya. Kalau 19 you ingat yang diam itu dia tak pandai punya, dia tak baca file ke, no. 20 21 CJ He is absorbing. 22 23 PCA Probably he is the one writing the judgment later on. 24 25 CJ You will be surprised how much they know. 26 27 YYP The next important issue is that the losing party always deserves to know why he lost. 28 A lot of the time, in the Appellate courts especially, there are no grounds, not even in 29 point-forms. 30 31 CJ It has been changed now. We have issued instructions. We will now always give our 32 grounds. We give reasons. Full appeals, we normally give judgments. If it is very 33 easy, straightforward, we just say the reasons why. We do give. But now, our new 34 approach is that we must give reasons. 35 36 YYP Including in the Court of Appeal? 37 38 CJM I think Tan Sri CJ has issued. 39 40 CJ Issued. 41 42 YYP That is good news. 43 44 CJ Short reasons, sometimes. 45 46 YYP The Bar also hopes that the judges, although they are very busy, take a more 47 enthusiastic approach in developing the law. 48

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1 CJM I think when the Federal Court actually created a new tort of sexual harassment, 2 nobody said anything, all silent. 3 4 YYP I think there was a lot of applause. 5 6 CJM Yes. But that is not the kind. The fact that this is the first time in the world we have a 7 tort of sexual harassment. It is quite muted, in that sense, you know? 8 9 YYP I remember looking at the comments in MalaysiaKini, they were all very positive. 10 11 CJM I am not talking about the social media and all that. I am talking about the legal world 12 not actually giving weight to that kind of decision. 13 14 YYP May be because it is quite recent. You might find it mentioned in some textbooks. 15 For example, there was a judgment written by Justice Mohd Azahar, who imported a 16 civil law concept in a contract case, and it came out in the next edition of Street on 17 Torts. 18 19 The Bar likes to take the bull by the horns. There is a perception of some degree of 20 corruption in the Judiciary. In the last 30 years, there has been some degree of 21 corruption. How do we remedy the situation? 22 23 CJ Why is it not being exposed? How come it is always whispered at the corridors? That 24 is the problem. 25 26 YYP Take for example the VK Lingam tape. He was exposed. I was in the team of counsel 27 for the Bar, at the Commission of Enquiry. Later, the Bar was a little disappointed as 28 to why the court did not haul up Mr Lingam. All of us are officers of the court. 29 30 CJ To do what? 31 32 YYP To show cause. 33 34 CJ I thought there was already a show cause thing? I think there are lots of proceedings 35 after that. There was an investigation. 36 37 YYP Those were initiated by the Bar. How do we prevent what had happened in the past 38 from happening again? 39 40 CJ But what is the mechanism? In fact, we do a declaration of assets. Unless all of us 41 drive small cars, or cycle to the office, and we do not own anything, is that the 42 yardstick? 43 44 YYP Certainly not. 45 46 CJ How do the public want judges to live? Some of them are back to practice, they have 47 kids you know. They are entitled to live comfortably. 48

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1 YYP If something is heard at the Bar, is there a channel where they can raise their 2 suspicion? 3 4 CJ Tell us. We are very receptive to them. 5 6 YYP Tell it to a committee perhaps? Rather than to 1 individual? 7 8 CJ Yes. That is why we are thinking of setting up an investigative committee. 9 10 YYP In a situation where there is no concrete evidence, but if a committee feels that there 11 is no smoke without fire, can an alternative coram be found? 12 13 CJ Correct. During my time, last time in East Malaysia, the slightest comment, we 14 changed. Sometimes the judge feels very offended. 15 16 YYP It may be sometimes good for that judge also. It might have been a very mischievous 17 complaint against that judge. But if he or she continues, and eventually decides the 18 way the rumours had it, then for no good reason he or she might be unfairly maligned. 19 20 CJ But let me tell you, some lawyer, when he loses a case, he immediately texts his 21 client, that somebody got bribed. Just like that, you know? One lawyer did that, 22 against a panel of judges. Can you imagine the harm done? Horrible, isn’t it? Just text, 23 to please the client. That is not fair. 24 25 CJM I also was an affected party. I did a case at the Court of Appeal, before we even left 26 the room, apparently in open court, it was said that the panel was paid RM2.5 million. 27 And there was market talk, commercial case, that we were paid. 28 29 CJ Horrible, isn’t it? 30 31 YYP Things like that happen more often than we would like to think. Even if only 1% of it 32 is true, 99% not true, we still have to address it. 33 34 CJ But how do you prevent lawyers from behaving like that? We need help. Because 35 they are the ones who are spreading the news. 36 37 YYP If I may suggest – you must involve the Bar, …... 38 39 CJ In fact we have lodged a complaint with the Bar. It takes them 10 years to do it. 40 Seriously. 41 42 YYP I don’t mean a complaint. I mean, in your committee, involve the Bar. If the Bar has 43 representatives there, and if they come and report that we have undergone a thorough 44 process of …… 45 46 CJ The committee thing we will discuss further. 47 48 PCA We come back to the question of legal framework. Because when you start talking 49 about people’s conducts, a lot of things will not be seen. Even some defamatory

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1 things also. So you need some kind of provisions, give this particular committee 2 some kind of immunity. There is a provision in the JCE. That is very important. 3 Otherwise, it becomes an administrative kind of committee, “saya pun tak boleh 4 cakap”. 5 6 YYP The second last item is this. The Bar is for separating the judicial service commission 7 from the legal service…... 8 9 CJ Already done. It has been done. The move to do so. 10 11 YYP The last item. It is only fair for me to ask all of you, as the new office bearers, what 12 messages you have for the Bar, and the public at large? 13 14 CJ To me, let’s work together for the betterment of justice. 15 16 CJM Yes. I think basically that is it. 17 18 YYP I take it that the Bar can also look forward to a closer and active participation and co- 19 operation with the Bench? 20 21 CJ One caveat, do not tell us what to do. That will be wrong, isn’t it? 22 23 YYP We have never done that. We make suggestions. 24 25 PCA That is very important. 26 27 YYP We will always try to persuade, and be respectful. However, the Bar’s position is 28 always that, if a point is to be made, then we will make it, even if it might be 29 perceived with disfavour. We will do our duty and bring it up, but we will bring it up 30 respectfully. 31 32 So I can inform the President that there is a will for having a consultative committee? 33 34 CJM We are actually doing it. 35 36 YYP With that, may I on behalf of the Bar thank each of you, for this opportunity to obtain 37 your views on various matters. And I apologise if I have taken a bit too long. Thank 38 you very much. 39 40 CJ It is a good discussion. We should have more of this.

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