CONTENTS
Page
Foreword By The Chairman 2
History Of The Judicial Appointments Commission 3
Profiles Of The Commissioners 9
Functions Of The Judicial Appointments Commission 15
Process Of Appointing A Superior Court Judge 17
Mechanism For The Selection Of Superior Court Judge 21
Selection Meeting For The Appointment Of Superior Court 25 Judge
Steps Taken And Being Taken To Overcome The Delay In 35 The Disposal Of Cases
Commissioners Visit The Kuala Lumpur High Court 39
Office Of The Secretary Of The Judicial Appointments Commission 43
1 JAC Annual Report 2009
JD132468 LAP BI.indd 1 2/19/10 6:20:00 PM oreword from the Chairman
YAA Tun Dato’ Seri Zaki bin Tun Azmi Chief Justice
The Judicial Appointments Commission was established almost a year ago by the Government in an effort to ensure and encourage transparency in the process of selection, appointment and judicial promotion. Soon after YAB The Prime Minister issued the letters of appointment to all the Commissioners on 9 February 2009, the first commission meeting was held on 26 February 2009. The Commission meets every month. Other than the selection and appointment of judges, the meetings also discuss, among others, subjects as the disposal of cases and improving the performance of superior court judges.
In order to enable and implement the Act based on the Commission’s recommendations, YAB The Prime Minister passed the Judicial Appointments Commission (Selection Process And Method of Appointment of Judges of the Superior Courts) Regulations 2009 which was gazetted and came into force on 1 June 2009.
The members of the Commission have been diligent in fulfilling their duties and functions as determined by the Act. Four (4) selection meetings have been carried out in 2009. The selection by each member of the Commission is independent of the other as all selections are done via secret ballot. By convention, albeit not required by law, the list of candidates for the position of Judicial Commissioner is also submitted to the Commission for its comments.
I thank all the officers and staff from the Office of the Secretary of the Judicial Appointments Commission, who have carried out their tasks and responsibilities in assisting the Commission in all its related affairs.
TUN DATO’ SERI ZAKI TUN AZMI
JAC Annual Report 2009 2
JD132468 LAP BI.indd 2 2/19/10 6:20:04 PM History Of The JUDICIAL APPOINTMENTS COMMISSION
3 JAC Annual Report 2009
JD132468 LAP BI.indd 3 2/19/10 6:20:25 PM Introduction
The Judicial Appointments Commission (JAC) was established with the coming into effect of the Judicial Appointments Commission Act 2009 (Act 695) on 2 February 2009. This Commission was established by an Act of Parliament and therefore not by any amendment to the Federal Constitution. The appointment process as provided for under Act 695 precedes the appointment process under Article 122B of the Federal Constitution.
The reason for the establishment of the JAC is to ensure the process of candidature, appointment and promotion to the superior courts is transparent and involves taking a more active as well as comprehensive approach. The term ‘Superior Court Judge’ includes the Chief Justice, The President of the Court of Appeal, Chief Judge of Malaya, Chief Judge of Sabah and Sarawak and High Court Judges. The JAC aims to bring the Judiciary a step further in reinventing itself, strengthening its foundations and integrity. It will also fulfill the aspirations of the people for transparency and fairness in the judicial system of this country.
JAC Annual Report 2009 4
JD132468 LAP BI.indd 4 2/19/10 6:20:35 PM History
Many parties have pressed for measures to be taken in creating more transparency in the appointment of judges, to return the confidence of the people as well as investors in the judiciary. This became necessary in light of the Dato’ V.K. Lingam video clip recording which demonstrated quite clearly the extent to which the judiciary is vulnerable to external manipulation and interference by influential parties who have vested interest in the appointment of judges. Subsequently, a Commission of Inquiry was convened on 12 December 2007 to look into the alleged interference and it had recommended, among its many findings, the establishment of a Judicial Appointments Commission.
Pursuant to Article 122B of the Federal Constitution, Judges of the Federal Court, Court of Appeal and High Court are appointed by the Yang di- Pertuan Agong, acting on advice of the Prime Minister, after consulting the Council of Rulers. Before tendering his advice on the appointment, the Prime Minster shall consult the Chief Justice. Based on the current practice it is difficult for those involved in the appointment of judges to determine whether the relevant provision in the Federal Constitution is adhered to or not. All parties including the opposition, the public, non-governmental organizations (NGO) and the Bar Council agreed with the Government’s decision to set up the JAC. The Bill of the JAC Act 2009 (Act 695) was read for the first time in the Dewan Rakyat (House of Representatives) on 10 December 2008 and passed on 17 December 2008 after its third reading. Subsequently the Bill was brought before the Dewan Negara (The Senate) on 22 December 2008, read for the third time and passed on 23 December 2008.
5 JAC Annual Report 2009
JD132468 LAP BI.indd 5 2/19/10 6:20:42 PM Appointment of Commissioners
The Judicial Appointments Commission comprises nine (9) members. Four (4) members are appointed by tenure, namely, the Chief Justice, the President of the Court of Appeal, the Chief Judge of Malaya and the Chief Judge of Sabah and Sarawak. Meanwhile a Federal Court Judge and four (4) others who are eminent persons and not members of the executive or other public service are appointed by the Prime Minister. On 9 February 2009, the former Prime Minister YABbhg. Tun Haji Abdullah bin Haji Ahmad Badawi announced the appointment of nine (9) commissioners with YAA Tun Dato’ Seri Zaki Tun Azmi, Chief Justice, as the Chairman of the Commission.
THE COMMISSIONERS ARE:
(i) YAA Tun Dato’ Seri Zaki bin Tun Azmi Chief Justice
(ii) YAA Tan Sri Dato’ Seri Alauddin bin Dato’ Mohd. Sheriff President of the Court of Appeal
(iii) YAA Tan Sri Arifi n bin Zakaria Chief Judge of Malaya
(iv) YAA Tan Sri Datuk Seri Panglima Richard Malanjum Chief Judge of Sabah and Sarawak
(v) YA Dato’ Zulkefl i bin Ahmad Makinudin Federal Court Judge
(vi) YA.Bhg. Tun Dato’ Seri Abdul Hamid bin Haji Mohamad Former Chief Justice
(vii) YBhg. Dato’ Seri Ainum binti Mohamed Saaid Former Attorney General
(viii) YBhg. Tan Sri Datuk Wira Dr. L.C. Vohrah Former Judge of the International Criminal Tribunal
(ix) YBhg. Tan Sri Datuk Amar Steve Shim Lip Kiong Former Chief Judge of Sabah and Sarawak
JAC Annual Report 2009 6
JD132468 LAP BI.indd 6 2/19/10 6:20:49 PM MEMBERS OF THE JUDICIAL APPOINTMENTS COMMISSION
From Left: YAA Dato’D ’ ZulkeflZ lk fl i BinBi AhmadAh d Makinudin,M ki di YAAYAA TanT SriS i DatukD k SeriS i PanglimaP li RichardRi h d Malanjum,M l j YAAYAA TanT Sri Arifi n Bin Zakaria, YAA Tan Sri Dato’ Seri Alauddin Bin Dato’ Mohd. Sheriff, YAA Tun Dato’ Seri Zaki Tun Azmi (Chairman), YABhg. Tun Dato’ Seri Abdul Hamid Bin Haji Mohamad, YBhg. Dato’ Seri Ainum Binti Mohamed Saaid, YBhg. Tan Sri Lal Chand Vohrah, YBhg. Tan Sri Datuk Amar Steve Shim Lip Kiong and Puan Hamidah Binti Khalid (Secretary)
7 JAC Annual Report 2009
JD132468 LAP BI.indd 7 2/19/10 6:20:57 PM JUDICIAL APPOINTMENTS COMMISSION ACT 2009 JUDICIAL APPOINTMENTS COMMISSION (SELECTION PROCESS AND METHOD OF APPOINTMENT OF JUDGES OF THE SUPERIOR COURTS) REGULATIONS 2009
Profi les Of The
In order to carry out those functions and duties under Act 695, and upon the recommendation of the Commission, the Prime Minister had made the regulations relating to the process and method of appointment. The Judicial Appointments Commission (Selection Process and Method of Appointment of Judges of the Superior Courts) Regulations 2009 had been gazetted and came into operation on 1 June 2009.
JAC Annual Report 2009 8
JD132468 LAP BI.indd 8 2/19/10 6:22:54 PM Profi les Of The COMMISSIONERS
9 JAC Annual Report 2009
JD132468 LAP BI.indd 9 2/19/10 6:22:59 PM YAA Tun began his career as an officer of the Legal and Judicial Service in 1969 and left service in 1985 to pursue a career in the legal profession as an advocate and solicitor with Messrs Sharizat, Rashid and Lee. On 5 September 2001, YAA Tun was
YAA Tun Dato’ Seri Zaki Tun Azmi appointed a Judge of the Federal Court and Chief Justice later as President of the Court of Appeal in 11 Chairman December 2007. YAA Tun was then appointed Chief Justice on 18 October 2008 till date.
YAA Tan Sri was appointed a Judicial Commissioner on 1 February 1992 after starting his career as an officer of the Legal and Judicial Service. YAA Tan Sri was appointed a High Court Judge on 1 August 1992, as Judge of the Court of Appeal on 15 April 2001 and thereafter as Judge of the Federal Court on 12 July 2004. On 5 September 2007, YAA YAA Tan Sri Dato’ Seri Alauddin Bin Dato’ Tan Sri was appointed as Chief Judge of the Mohd. Sheriff President of the Court of Appeal High Court in Malaya and on 18 October 2008 he was appointed as President of the Court of Appeal till date.
YAA Tan Sri began his career as an officer of the Legal and Judicial Service and was appointed Judicial Commissioner on 1 March 1992. After serving as Judicial Commissioner for close to two (2) years, YAA Tan Sri was appointed as High Court Judge on 25 January 1994, Judge of the Court of Appeal on 6 August 2002 and as Judge of the Federal Court on 17 June 2005. On 18 October 2008 YAA was appointed Chief YAA Tan Sri Arifi n Bin Zakaria Chief Judge of the High Court in Judge of the High Court in Malaya till date. Malaya
JAC Annual Report 2009 10
JD132468 LAP BI.indd 10 2/19/10 6:23:14 PM YAA Tan Sri was first elected Judicial Commissioner in March 1992. Prior to this, YAA Tan Sri served with the Office of the Legal Advisor of Sabah and thereafter began his career as a lawyer. YAA Tan Sri was appointed a High Court Judge on 20 August 1993, Judge YAA Tan SriSri Datuk SeriSeri PanglimaPanglima of the Court of Appeal on 6 August 2002 and Richard Malanjum Chief Judge of the High Court in Judge of the Federal Court on 17 June 2005. Sabah & Sarawak On 26 July 2006, YAA Tan Sri became the first person from Sabah to be elected as Chief Judge of the High Court in Sabah and Sarawak till date.
Before being appointed a Judicial Commissioner on 1 November 1994, YA Dato’ served as an officer of the Legal and Judicial Service. Beginning 12 January 1996, YA Dato’ was appointed as High Court Judge and subsequently appointed a Judge of the Court of Appeal on 17 June 2005. On 5 September 2007, YA was appointed a Judge of the Federal Court till YA Dato’ Zulkefl i Bin Ahmad Makinudin date.
YABhg. Tun is the former chief Justice of Malaysia. YABhg. Tun’s service with the Judiciary began when he was appointed a Judicial Commissioner on 1 March 1992. He was thereafter appointed a Judge of the Court of Appeal on 1 September 2000 and as a Judge of the Federal Court on 1 August 2003. YABhg. Tun was elected Chief Justice YA Bhg. Tun Dato’ Seri Abdul Hamid bin Haji Mohamad on 2 November 2007 until his retirement on 17 October 2008.
11 JAC Annual Report 2009
JD132468 LAP BI.indd 11 2/19/10 6:23:21 PM YBhg. Dato’ Seri Ainum binti Mohamed Saaid is the former Attorney General of Malaysia having served in this capacity from January till December 2001. Prior to this, she was Deputy Chief Executive in the Securities Commission from 1999 to 2001, Group Legal Advisor for the Corus Hotels Group UK and later joined Laura Ashley UK in 2002. YBhg. Dato’ Seri was appointed to the Board of Directors of Amanah Saham Nasional Berhad on April 8, 2009 YBhg. Dato’ Seri Ainum Binti Mohamed and to the Board of Directors of Permodalan Saaid Nasional Berhad on April 29, 2009.
YBhg. Tan Sri began service as a Judge of the Superior Court from 1978 till 1993. On 17 September 1993, YBhg. Tan Sri was elected by the United Nations General Assembly to serve as one of the founding judges of the International Criminal Tribunal for the former Yugoslavia (ICTY). On 20 May 1999, he was re-elected to serve as a full time judge in ICTY, when in his second term he also served as a Judge of the Appeals Chamber for both the ICTY and the International Criminal Tribunal for Rwanda. YBhg. Tan Sri was later elected YBhg. Tan Sri Datuk Wira Dr. Lal Chand Vohrah ad litem judge for the ICTY in 2001 for 4 years after the expiry of his permanent judgeship.
YBhg. Tan Sri began his service with the Judiciary on 1 March 1992 when he was appointed a Judicial Commissioner in the Sibu High Court. On 1 August 1992, YBhg. Tan Sri was appointed a High Court Judge and served in both the Kuching and Kuala Lumpur High Courts. YBhg. Tan Sri is the former Chief Judge of the High Court in Sabah and Sarawak. He was appointed to this position on 1 September
YBhg. Tan Sri Datuk Amar Steve Shim Lip Kiong 2000 and served until he retired from service on 19 July 2006.
JAC Annual Report 2009 12
JD132468 LAP BI.indd 12 2/19/10 6:23:29 PM Meeting Schedule JUDICIAL APPOINTMENTS COMMISSION
Subsection 13 (1) of the Judicial Appointments Commission Act 2009 (act 695) provides that the Commission shall meet at least once a month at such time and place as may be determined by the Chairman. In 2009 the Commission held a total of eleven (11) meetings on the following dates and at such venues as follow:
NO. MONTH DATE LOCATION
Chief Justice Meeting Room, Level 5, 1. February 26 Feb (Thursday) Istana Kehakiman, Putrajaya
Chief Justice Meeting Room, Level 5, 2. March 25 March (Wednesday) Istana Kehakiman, Putrajaya
Chief Justice Meeting Room, Level 5, 3. April 29 April (Wednesday) Istana Kehakiman, Putrajaya
Chief Justice Meeting Room, Level 5, 4. May 20 May (Thursday) Istana Kehakiman, Putrajaya
Chief Justice Meeting Room, Level 5, 5. June 19 June (Wednesday) Istana Kehakiman, Putrajaya
Chief Justice Meeting Room, Level 5, 6. July 17 July (Friday) Istana Kehakiman, Putrajaya
Chief Justice Meeting Room, Level 5, 7. August 14 August (Friday) Istana Kehakiman, Putrajaya
Chief Justice Meeting Room, Level 5, 8. September 17 September (Thursday) Istana Kehakiman, Putrajaya
Anggerik Meeting Room, Level 6 9. October 23 October (Friday) Kompleks Mahkamah Kuala Lumpur
Chief Justice Meeting Room, Level 5, 10. November 13 November (Friday) Istana Kehakiman, Putrajaya
Chief Justice Meeting Room, Level 5, 11. December 11 December (Friday) Istana Kehakiman, Putrajaya
13 JAC Annual Report 2009
JD132468 LAP BI.indd 13 2/19/10 6:23:44 PM Functions Of The
JAC Annual Report 2009 14
JD132468 LAP BI.indd 14 2/19/10 6:23:51 PM Functions Of The JUDICIAL APPOINTMENTS COMMISION PURSUANT TO SUB SECTION 21 (1) JUDICIAL APPOINTMENTS COMMISSION ACT 2009 (ACT 695)
15 JAC Annual Report 2009
JD132468 LAP BI.indd 15 2/19/10 6:24:02 PM Functions of the JUDICIAL APPOINTMENTS COMMISSION
• To select suitably qualified persons who merit appointment as judges of the superior court for the Prime Minister’s consideration
• To receive applications from qualified persons for the selection of judges to the superior court Process Of Appointing
• To formulate and implement mechanisms for the selection and appointment of judges of the superior court
• To review and recommend programmes to the Prime Minister to improve the administration of justice
• To make other recommendations about the Judiciary
• To do such other things as it deems fit to enable it to perform its functions effectively or which are incidental to the performance of its functions under this Act
JAC Annual Report 2009 16
JD132468 LAP BI.indd 16 2/19/10 6:24:15 PM Process Of Appointing A SUPERIOR COURT JUDGE
17 JAC Annual Report 2009
JD132468 LAP BI.indd 17 2/19/10 6:24:20 PM The process of selecting suitably qualified candidates for appointment as a superior court judge for the consideration of the Prime Minister is based on the criteria as provided for in the Act.
Criteria
• Fulfils the requirement under Article 123 of the Federal Constitution, that is, a citizen who has been an advocate of superior courts or a member of the judicial and legal service for 10 years preceding the appointment;
• Objective, impartial, fair and good moral character;
• Decisive and able to make timely judgments;
• Industrious and able to manage cases well;
• Physical and mental health; and
• For a serving Judge and Judicial Commissioner, must not have more than 3 unwritten grounds of judgment that are overdue by 60 days or more from the date deemed to be due.
For the purpose of maintaining integrity, all the names of candidates are submitted for screening to the Royal Malaysian Police, Malaysian Anti-Corruption Commission, Companies Commission of Malaysia and the Department of Insolvency Malaysia. Only those who pass the screening process will be considered for selection.
JAC Annual Report 2009 18
JD132468 LAP BI.indd 18 2/19/10 6:24:27 PM Process
• The Secretary to the Commission then prepares complete documents containing all the necessary information according to the criteria for each candidate and sends these to the Commissioners at least three (3) days before a selection meeting.
• As provided for in Act 695, the Commission will select not less than three (3) persons for each vacancy for the position of High Court Judge or select not less than two (2) for each vacancy for positions as a superior court judge other than a High Court Judge.
• Each Commissioner will select and vote via secret ballot in a specially prepared form and the result is based on the majority of votes received.
• Although not specified in the Act, the Bar Council is also notified of all the names of the candidates being considered although this is not specified under Act 695. This has been acknowledged by the President of the Bar Council Mr. Ragunath Kesavan in his statement to BERNAMA during a ceremony where appointment letters were presented to Judges of the Federal Court and Court of Appeal on 15 April 2009
19 JAC Annual Report 2009
JD132468 LAP BI.indd 19 2/19/10 6:24:34 PM Report to the Prime Minister
After each selection meeting, the Commission prepares a report to be submitted to the Prime Minister. The following points are stated in the report: Mechanism For The (i) The names chosen by the Commission;
(ii) Reasons why those names were chosen; and Selection Of
(iii) Other information the Commission deems necessary for the attention of the Prime Minister.
When those names as submitted are approved by the Prime Minister, then the next step is as per the provisions in the Federal Constitution. In 2009, four (4) reports were submitted to the Prime Minister.
JAC Annual Report 2009 20
JD132468 LAP BI.indd 20 2/19/10 6:24:41 PM Mechanism For The
Selection Of
SUPERIOR COURT JUDGE
21 JAC Annual Report 2009
JD132468 LAP BI.indd 21 2/19/10 6:24:47 PM TO SIMPLIFY THE PROCESS OF SELECTION, THE COMMISSION HAS PREPARED A MECHANISM FOR THE SELECTION OF SUPERIOR COURT JUDGES, AS FOLLOWS:
i. MECHANISM FOR THE SELECTION OF JUDGES OF THE FEDERAL COURT AND COURT OF APPEAL
ii. MECHANISM FOR THE SELECTION OF JUDGES OF THE HIGH COURT
JAC Annual Report 2009 22
JD132468 LAP BI.indd 22 2/19/10 6:24:54 PM MECHANISM FOR THE SELECTION OF JUDGES OF THE FEDERAL COURT AND COURT OF APPEAL
Commission identifies vacancies
Receives suggestions from Chief Justice President of the Court of Appeal Persons of Position
Foward names of nominees for screening
• Malaysia Anti-Corruption Commission • Royal Malaysian Police • Companies Commission of Malaysia • Department of Insolvency Malaysia
Prepare Paper for Consideration based on the Selection Criteria provided for in Section 23 JAC Act 2009 together with performance reports
Inform the Commission ten (10) days before Selection Meeting of the Commission
Send meeting folders at least three (3) days before the meeting
Meeting
Prepare report to the Prime Minister
Chairman submits report to the Prime Minister together with a letter from the Chief Justice and the President of the Court of Appeal for Appeal Court Judges
Receive approval from the Prime Minister and is forwarded to the Cabinet Division of the Prime Minister’s Department for further action in accordance with Article 122B of the Federal Constitution
23 JAC Annual Report 2009
JD132468 LAP BI.indd 23 2/19/10 6:25:01 PM MECHANISM FOR THE SELECTION OF JUDGES OF THE HIGH COURT
Advertisement on vacancies for the position of High Court Judge
Commission informs serving Judicial Commissioners regarding the selection exercise for High Court Judges (only for candidates who have not applied before. Those who have applied need not resubmit the application)
Interview for candidates who are not Judicial Commissioners
Forward names of applicants for screening • Malaysian Anti-Corruption Commission • Royal Malaysian Police • Companies Commission of Malaysia • Department of Insolvency Malaysia Selection Meeting
Prepare Paper for Consideration based on the Selection Criteria provided for in Section 23 JAC Act 2009 together with performance reports for Judicial Commissioners
Prepare Paper for Consideration based on the Selection Criteria provided for in Section 23 JAC Act 2009 together with performance reports for Judicial Commissioners
Send meeting folders at least three (3) days before the meeting
Meeting
Prepare report to the Prime Minister
Submit report to the Prime Minister together with a letter from the Chief Justice, Chief Judge of Malaya and Chief Judge of Sabah & Sarawak
Receive approval from the Prime Minister and is forwarded to the Cabinet Division of the Prime Minister’s Department for further action in accordance with Article 122B of the Federal Constitution
Letters sent to unsuccessful candidates
JAC Annual Report 2009 24
JD132468 LAP BI.indd 24 2/19/10 6:25:08 PM Selection Meeting
APPOINTMENT OF SUPERIOR COURT JUDGE
25 JAC Annual Report 2009
JD132468 LAP BI.indd 25 2/19/10 6:25:14 PM In 2009, four (4) Selection Meetings pursuant to section 24 of the Judicial Appointments Commission Act 2009 (Act 695) were held, all of which were chaired by YAA Tun Dato’ Seri Zaki bin Tun Azmi, the Chief Justice.
YAA The Chief Justice Chairing A Selection Meeting
CCommissionersi i ShSharing i ThTheir i ViViews RRegarding di CCandidates didd t BeingBi ConsideredC id d
JAC Annual Report 2009 26
JD132468 LAP BI.indd 26 2/19/10 6:25:20 PM The dates of meetings held and names of those recommended are as follow:
(i) The first selection meeting was held on 26 February 2009 for the selection of Judges of the Federal Court and Court of Appeal. All Commissioners were present in this meeting. A total of six (6) candidates were considered for selection as Judge of the Federal Court and ten (10) candidates for selection as Judge of the Court of Appeal. Meanwhile, vacancies for both those courts are as follow:
Judge of the Federal Court Judge of the Court of Appeal
Filled 5 20 Vacant 3 2
The following names were selected to be recommended to The Prime Minister as Judges of the Federal Court and Court of Appeal as follow:
Judge of the Federal Court
BIL. NAME
1. YA Dato’ Gopal Sri Ram
2. YA Datuk Wira Haji Mohd. Ghazali bin Mohd. Yusoff
3. YA Dato’ James Foong Cheng Yuen
Judge of the Court of Appeal
BIL. NAME
1. YA Dato’ Mohd Hishamudin bin Mohd. Yunus
2. YA Datuk Ramly bin Haji Ali
3. YA Dato’ Kang Hwee Gee
4. YA Dato’ Jeffrey Tan Kok Wha
5. YA Dato’ Azhar @ Izhar b. Hj. Ma’ah
Note: Five (5) judges were selected as Judges of the Court of Appeal to fi ll two (2) existing vacancies while three (3) more were vacancies following the selection of three (3) Judges of the Court of Appeal as Judges of the Federal Court
27 JAC Annual Report 2009
JD132468 LAP BI.indd 27 2/19/10 6:25:44 PM All the names selected have been appointed and have received their letters of appointment from Seri Paduka Baginda Yang Di-Pertuan Agong and have been sworn in before the Chief Justice for Judges of the Federal Court and before the President of the Court of Appeal for Judges of the Court Appeal on 15 April 2009.
(ii) The second selection meeting was held on 25 Mac 2009. A total of 25 applications were received from serving Judicial Commissioners for selection to fill vacancies in the High Court as High Court Judge, of which numbers are as follow:
High Court in Malaya High Court in Sabah & Sarawak
Filled 40 7 Vacant 20 6
The following names were selected to be recommended to the Prime Minister:
Judge of the High Court
BIL. NAME
1. YA Dato’ Mohd. Zawawi bin Salleh
2. YA Tuan Ahmad Zaidi bin Ibrahim
3. YA Dr. Haji Hamid Sultan bin Abu Backer
4. YA Tuan Abang Iskandar bin Abang Hashim
5. YA Puan Nallini Pathmanathan
6. YA Tuan Mohamad Ariff bin Md. Yusof
JAC Annual Report 2009 28
JD132468 LAP BI.indd 28 2/19/10 6:25:51 PM All the names selected have been appointed and have received their letters of appointment from Seri Paduka Baginda Yang Di-Pertuan Agong and have been sworn in before the Chief Judge of the High Court in Malaya and Chief Judge of the High Court in Sabah and Sarawak on 14 October 2009.
(iii) The third selection meeting was held on 19 June 2009 to fill vacancies for the positions Judge of the Federal Court and Judge of the Court of Appeal following the creation of additional positions via gazette PU(A) 163/2009 (Additional Positions for Federal Court Judge) and PU(A) 164/2009 (Additional Positions for Court of Appeal Judge) effective 1 May 2009. Vacancies for those positions, Judge of the Federal Court and Court of Appeal, as at the date of the meeting are as follow:
Judge of the Federal Court Judge of the Court of Appeal
Filled 7 21 Vacant 4 11
A total of nine (9) candidates were considered for selection as Judge of the Federal Court and twelve (12) candidates were considered for selection as Judge of the Court of Appeal. The names chosen for recommendation to the Prime Minister are as follow:
Judge of the Federal Court
BIL. NAME
1. YA Datuk Md Raus bin Sharif 2. YA Dato’ Abdull Hamid bin Embong 3. YA Datuk Heliliah binti Mohd Yusof
Judge of the Court of Appeal
BIL. NAME
1. YA Dato’ T.Selventhiranathan 2. YA Dato’ Tee Ah Sing @ Tee Boon Hooi 3. YA Datuk Syed Ahmad Helmy bin Syed Ahmad
29 JAC Annual Report 2009
JD132468 LAP BI.indd 29 2/19/10 6:25:58 PM All the names selected have been appointed and have received their letters of appointment from Seri Paduka Baginda Yang Di-Pertuan Agong and have been sworn on 14 October 2009.
(iv) The fourth selection meeting was held on 13 November 2009 to fill vacancies for the positions Judge of the Court of Appeal and High Court Judge.
Total vacancies for both positions, Judge of the Court of Appeal and High Court Judge, as at the date of the meeting are as follow:
Court of Appeal High Court in Malaya High Court in Sabah & Sarawak
Filled 21 40 5 Vacant 11 20 8
A total of 20 names were considered for selection as Judge of the Court of Appeal whereas for the position of High Court Judge, 19 applications from serving Judicial Commissioners and 31 applications from legal practitioners were considered. From the total, only four (4) names were selected as Judge of the Court of Appeal and ten (10) names were selected as High Court Judge.
JAC Annual Report 2009 30
JD132468 LAP BI.indd 30 2/19/10 6:26:06 PM At A Ceremony For The Presentation Of The Letters Of Appointment To Judges Of The Federal Court And Court Of Appeal On 15 April 2009
Seri Paduka Baginda Yang Di-Pertuan Agong Together With Judges Of The Federal Court And Judges Of The Court Of Appeal After A Ceremony To Present The Letters Of Appointment
31 JAC Annual Report 2009
JD132468 LAP BI.indd 31 2/19/10 6:26:13 PM YAA The Chief Justice, YAA The President Of The Court Of Appeal And YAA The Chief Judge Of Malaya Together With YA Judges Of The Federal Court Who Received Their Letters Of Appointment From Seri Paduka Baginda Yang Di-Pertuan Agong
YAA The Chief Justice, YAA The President Of The Court Of Appeal And YAA The Chief Judge Of Malaya Together With YA Judges Of The Court Of Appeal Who Received Their Letters Of Appointment From Seri Paduka Baginda Yang Di-Pertuan Agong
JAC Annual Report 2009 32
JD132468 LAP BI.indd 32 2/19/10 6:26:22 PM APPOINTMENT OF JUDICIAL COMMISSIONERS
The selection and appointment of Judicial Commissioners is not included as a function of the Judicial Appointments Commission as the definition of a superior court judge contained in the Judicial Appointments Commission Act 2009 (Act 695) does not include a Judicial Commissioner. As a result, this Act cannot be used for the appointment of Judicial Commissioners. The Commission is of the view that it is only reasonable that the appointment of Judicial Commissioners be included as a function of the JAC and provided for under Act 695. This is due to the fact that the function of a Judicial Commissioner is similar to that of a High Court Judge as provided for under the Federal Constitution.
For the purpose of maintaining transparency and ensuring the quality of Judicial Commissioners who are appointed after the coming into force of Act 695, the Chief Justice had submitted all the names of candidates who had applied or who were identified for appointment as Judicial Commissioner at the meeting of the Judicial Appointments Commission for the views of the Commissioners. The Chief Justice will then carry out the next step according to the provision in Article 122B of the Federal Constitution.
In 2009, the names of 52 candidates, comprising Legal Practitioners as well as Legal and Judicial Officers, were submitted to the Commission for its views. Those names were either received from the Bar Council or via application, and also include those who were identified. Those who were approved by the Commission were then interviewed by the Judiciary. A total of 43 candidates were called up for interview on the following dates:
Date Number of Candidates
4 May 2009 7 5 May 2009 5 6 May 2009 5 18 May2009 11 20 May 2009 5 22 July 2009 10
TOTAL 43
The panel of interviewers comprise the Chief Justice, President of the Court of Appeal, Chief Judge of Malaya and a judge from the Federal Court or the Court of Appeal. The names of successful candidates are then forwarded to the Malaysian Anti-Corruption Commission, Companies Commission of Malaysia, Department of Insolvency Malaysia and the Royal Malaysian Police for screening before the Chief Justice writes to the Prime Minister for approval and thereafter for the attestation of Seri Paduka Baginda Yang Di-Pertuan Agong.
33 JAC Annual Report 2009
JD132468 LAP BI.indd 33 2/19/10 6:26:30 PM The list of names of Judicial Commissioners appointed via the process mentioned above is as follows:
BIL. NAME POSITION BEFORE APPOINTMENT AS JUDICIAL COMMISSIONER
1. Puan Amelia Tee Hong Geok Abdullah Chairman, Industrial Court
2. Dato’ Has Zanah bt. Mehat Registrar, Court of Appeal
3. Tuan Haji Ahmad Nasfy bin Haji Yasin Director, Johore Court
4. YBhg. Dato’ Zakiah bt Kasim Chairman, Board of Advisors
5. YBhg. Dato’ Nik Hasmat bt Nik Mohamad Director General, Legal Aid Bureau
6. Puan Choong Siew Khim Director, Legal Qualifying Board, Kuala Lumpur
7. Puan Nurmala bt Salim Parole Board
8. YBhg. Dato’ Asmabi binti Mohamad Consultant Department of Insolvency, Malaysia
9. Puan Siti Khatijah S. Hassan Pensioner (Legal and Judicial Officer)
10. Encik Mohd. Amin Firdaus bin Abdullah Chairman, Industrial Court
11. Encik Teo Say Eng Chairman, Industrial Court
12. Encik Chew Soo Ho Chairman, Industrial Court
13. Encik Anantham Kasinather Lawyer
14. Encik John Ko Wai Seng Lawyer
15. Y.Brs. Dr. Prasad Sandosham Abraham Lawyer
16. Encik Varghese George s/o George Varughese Lawyer
17. Puan Supang Lian Director, Sabah Court
18. Encik Lee Heng Cheong Lawyer
19. Encik Stephen Chung Hian Guan Lawyer
JAC Annual Report 2009 34
JD132468 LAP BI.indd 34 2/19/10 6:26:37 PM STEPS TAKEN AND BEING TAKEN TO OVERCOME THE DELAY IN THE DISPOSAL OF CASES
35 JAC Annual Report 2009
JD132468 LAP BI.indd 35 2/19/10 6:26:45 PM The JAC meeting on 17 July 2009 had discussed the steps taken and being taken by the Judiciary to overcome the delay in disposing cases. YAA the Chief Justice as chairman of the meeting briefed the meeting as follows:
1. Restructuring of the File Registration System for the Whole Courts
As a result of the steps taken, the following issues have been reduced:
• Reduction in the percentage of missing or misplaced files;
• Faster location of files and file searches; and
• Contribution towards reducing and erasing the incidence of corruption.
2. Increasing the number of Superior Court Judges and Judicial Commissioners
Increasing the number of Judges of the Federal Court and Court of Appeal, High Court as well as Judicial Commissioners who are on two (2) year contractual terms.
3. Implementing the ‘Tracking System’ for the Commercial and Civil Divisions of the Kuala Lumpur High Court.
This system has two (2) parts, the ‘A’ Track and ‘T’ Track.
“A” Track cases mean cases that are to be tried on affidavit evidence as compared to “T” Track cases which are cases where oral evidence will be heard during trial.
YA Dato’ James Foong Cheng Yuen, Federal Court Judge, was appointed as managing Judge of the Civil Division of the High Court at Kuala Lumpur and YA Dato’ Raus bin Sharif, Federal Court Judge, was appointed as managing Judge of the Commercial Division of the High Court at Kuala Lumpur. The implementation of these systems will assist in speeding up the disposal of cases in those courts.
JAC Annual Report 2009 36
JD132468 LAP BI.indd 36 2/19/10 6:26:50 PM Advantages of this system:
(i) Judges only hear cases which are ready for trial
(ii) Allows for monitoring of cases and determine the timeline for disposal
(iii) Judges Key Performance Indicator (KPI) can be set accordingly
4. Close Monitoring And Being Strict In Granting Postponements
• The Attorney General’s Chambers has taken full heed of this and has instructed all its Deputy Public Prosecutors and Federal Counsels not to request for postponement of cases and to report to headquarters the reasons if a case is postponed.
• The Bar Council will be issuing general instructions to its members not to request for postponement of cases.
• All Judges are required to be strict in granting postponement of cases.
5. New Civil Procedures
YA Dato’ Gopal Sri Ram, Federal Court Judge, was appointed to look into the simplification of the methods and procedures in the High Court.
6. YA Dato’ Zulkefli bin Ahmad Makinudin, Federal Court Judge was appointed to head a team of legal officers to look into ways to simplify criminal proceedings relating to the Penal Code, Evidence Act and Criminal Procedure Code. Several proposals have been made and submitted to the Attorney General’s Chambers and the Bar Council for comments.
7. Speeding up Hearings
The following steps have been taken to ensure hearings are sped up:
• Improvement to the Information Technology System • Increased usage of the Court Recording & Transcription system • Amendment to the Criminal Procedure Code to allow electronic recording of evidence.
37 JAC Annual Report 2009
JD132468 LAP BI.indd 37 2/19/10 6:26:58 PM 8. Continuous Learning for Judges
For the purpose of promoting continuous learning among judges of the superior court, seminars on specific areas of law or otherwise, are held once a month, on Saturdays to allow judges to attend these seminars without postponing cases.
9. Creating New Commercial Courts in Kuala Lumpur
These Commercial Courts are created with the intention of speeding up the disposal of commercial cases and to increase the confidence of local as well as foreign investors to continue investing in Malaysia. Two (2) New Commercial Courts were created on 1 September 2009.
10. Identifying Key Performance Indicators (KPI) CommissionersVisit The Judiciary has implemented KPIs for superior court judges. It was first introduced in March 2009 during the Judges Conference ini Langkawi and is reviewed every six (6) months.
JAC Annual Report 2009 38
JD132468 LAP BI.indd 38 2/19/10 6:27:05 PM CommissionersVisit THE KUALA LUMPUR HIGH COURT
39 JAC Annual Report 2009
JD132468 LAP BI.indd 39 2/19/10 6:27:11 PM The Judicial Appointments Commission visited the Kuala Lumpur High Court, Jalan Duta, on 23 October 2009, where the monthly meeting was also held. Included in the agenda was a visit to the New Commercial Courts (NCC). A briefing regarding the NCC was delivered by Puan Hamidah Mohd. Deril, Deputy Registrar, Commercial Division, High Court at Kuala Lumpur regarding the effectiveness of NCC and the advantages of using this system as opposed to the method of settling commercial cases previously. The Commission was informed that the NCC was established on 1 September 2009.
During the said briefing, the Commission was informed that cases registered prior to the creation of the NCC were not jeopardised in any way as the judges who were assigned to handle those cases remained so. Cases registered under the NCC beginning 1 September 2009 are handled by a High Court Judge, namely, YA Dr. Haji Hamid Sultan bin Abu Backer and a Judicial Commissioner YA Tuan Anantham Kasinather. The changes and advantages of the NCC are:
(i) Able to set a date or period for the disposal of cases including a more structured approach to the management of cases;
(ii) Reducing the waiting time for hearings;
(iii) Utilisation of digital systems from the point of registration up to the stage of hearing to increase efficiency and effectiveness; and
(iv) Exclusive monitoring and managing specifically for NCC cases.
The online registration system for the NCC saves time in addition to ensuring that monitoring the progress of cases is more focused and accurate.
After the visit to the NCC, the Commission continued with a visit to the Civil Division of the High Court. The Commission was given a briefing by Puan Siti Noraida bt Sulaiman, Deputy Registrar, on the implementation of the Case Recording and Transcribing (CRT) system under the e-Court project. The Commissioners witnessed an example of the recording of a case using this system. Till date this system is able to fulfil the need of the Court in the management and recording of cases being heard. The Commissioners were also briefed on the Case Management System (CMS) which allows for each case to have its own progress schedule.
PEMUDAH had reported that according to the World Bank and the report from The Doing Business 2008 by International Finance Corporation, Malaysia’s enforcement of contract lies at 59th place among 181 countries in 2008 and at 20th place among 186 countries in 2009. In an effort to overcome this issue and to increase the service delivery system, as well as to return the confidence of the people and foreign investors, the CMS was launched towards achieving that goal. The CMS ensures the handling of cases are more systematic and may be monitored online by relevant authorised parties. Finally, the Queue Management System (QMS) is in place to speed up the calling of cases and enhance case scheduling and management which is especially helpful to Court officers as well as lawyers who need to manage their time.
JAC Annual Report 2009 40
JD132468 LAP BI.indd 40 2/19/10 6:27:17 PM Briefi ng On The Implementation Of the Case Recording and Transcribing (CRT) System Under The e-Court Project
41 JAC Annual Report 2009
JD132468 LAP BI.indd 41 2/19/10 6:27:24 PM Briefi ng On The Implementation Of The NCC To The Commissioners By The Deputy Registrar, Commercial Division, Kuala Lumpur High Court
Offi ce Of The Secretary
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JD132468 LAP BI.indd 42 2/19/10 6:27:50 PM Offi ce Of The Secretary
JUDICIAL APPOINTMENTS COMMISSION
43 JAC Annual Report 2009
JD132468 LAP BI.indd 43 2/19/10 6:28:09 PM Background
The office of the Secretary was created with the coming into force of the Judicial Appointments Act 2009 (Act 695) on 2 February 2009. A total of 13 positions were created with officers and staff from members of General Public Service of the Federation to assist the Commission in carrying its functions under Act 695. Puan Hamidah Khalid was appointed by the Prime Minister as the Secretary to the Judicial Appointments Commission on 16 February 2009. This appointment requires the Secretary’s involvement in all aspects of administration, finance as well as operation of the Commission including carrying out the decisions of the Commission.
The Office of the Secretary began operations on 16 February 2009. This office was initially located at Level 8, Legal Affairs Division Building, Putrajaya. On 13 April 2009, the Office of the Secretary of the Judicial Appointments Commission moved to Level 5, Istana Kehakiman. The location of the Office of the Secretary at Istana Kehakiman sees to it that all the affairs relating to the management of the appointment of judges run smoothly as the Chairman and four (4) other members of the Commission are also located in the same building.
JAC Annual Report 2009 44
JD132468 LAP BI.indd 44 2/19/10 6:28:17 PM Offi ce Of The Secretary Judicial Appointments Commission
Hamidah Khalid
Secretary
Abu Bakar bin Muhammad ZulZ l HadiHdibiAh bin Ahmad d
Deputy Secretary Deputy Secretary (Appointments) (Management)
Kevin Geh Kien Meng Nik Ahmad Zahiruddin bin Nik Saleh
Principal Assistant Secretary Principal Assistant Secretary (Appointments) (Management)
45 JAC Annual Report 2009
JD132468 LAP BI.indd 45 2/19/10 6:28:24 PM Organization Chart
OFFICE OF THE SECRETARY JUDICIAL APPOINTMENTS COMMISSION (ESTABBLISHMENT WARRANT NO: A12 YEAR 2009 EFFECTIVE ON 1 FEBRUARY 2009)
SECRETARY
ADMINISTRATIVE & DIPLOMATIC OFFICER GRADE: SUPERSCALE B
PERSONAL ASSISTANT N32/N22/N17
APPOINTMENT MANAGEMENT DEPARTMENT DEPARTMENT DEPUTY SECRETARY DEPUTY SECRETARY ADMINISTRATIVE & DIPLOMATIC ADMINISTRATIVE & DIPLOMATIC OFFICER OFFICER GRADE M54 GRADE M52
PERSONAL ASSISTANT N17
APPOINTMENT & FINANCE ADMINISTRATION & RESEARCH SECTION SECTION HUMAN RESOURCE SECTION INFORMATION PRINCIPAL ASSISTANT SECRETARY TECHNOLOGY UNIT ADMINISTRATIVE & DIPLOMATIC PRINCIPAL ASSISTANT SECRETARY EXECUTIVE OFFICER OFFICER ADMINISTRATIVE & DIPLOMATIC GRADE N36 GRADE M48 ASSISTANT INFORMATION OFFICER TECHNOLOGY OFFICER GRADE F29 GRADE M48 ADMINISTRATIVE ASSISTANT DRIVER GRADE R3 (OPERATION)) ADMINISTRATIVE ASSISTANT GRED N22 (FINANCE) (Actual Post: PT/PO N17) GRADE W17 OFFICE ASSISTANT GRADE N1
JAC Annual Report 2009 46
JD132468 LAP BI.indd 46 2/19/10 6:29:04 PM Function
1. Appointments Division • Managing the appointment of members of the Judicial Appointments Commission under subsection 5(1)(e) and (f) of the Judicial Appointments Commission Act 2009; • Processing proposals and applications with regard to the selection and appointment of superior court judges; • Preparation of all meeting documents; • Implementing decisions of the Commission; • Preparation of the Periodic Schedule for Commission Meetings / Commission Meetings (Appointment of Judges) • Preparation of the Annual Report • Research into improving the administration of justice • Preparation of Cabinet Memorandums / Feedback for Cabinet Meetings • Developing and Maintaining the JAC website
2. Management Division
• Financial Management • Human Resource Management
47 JAC Annual Report 2009
JD132468 LAP BI.indd 47 2/19/10 6:29:11 PM Financial Allocation
In 2009, the Judicial Appointments Commission received and managed a total of RM999,672.00 in financial allocation via a virement from the Prime Minister’s Department. The details of expenditure are as follow:
Subject Total (RM)
Emolument 743,571
Supply and Services 256,101
Total 999,672
JAC Annual Report 2009 48
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