Law Minister, AG, Bar had no decency, no courtesy, on reforms in law education

The system must be based on trust and integrity.

Indeed, the court’s anti-Orang Asal mindset on NCR land cases has reached pandemic levels.

Adat, based on customary practices, has force of law just as the Federal Constitution, being the ultimate political document, has force of law.

Surprise, surprise!

In a disingenuous take, the Federal court feels that Adat does not have force of law unless it’s specifically stated by law or the Constitution.

Patently, there’s no salvation for the judiciary.

NCR land cases should start at the Land Office, move to the Native Court and end at the High Court of Borneo.

The Court of Appeal and the Federal court should keep out of NCR land cases.

I wrote to de facto Law Minister V. K. Liew, AG Tommy Thomas and Bar Council Chief George Vergese post-GE14 on introducing reforms in legal education but to no avail.

They didn’t even have the decency and courtesy to acknowledge my efforts. I had expected the AG at least to reply to my letter.

I cited the ongoing changes in England and Wales on legal education.

Malaysia’s approach in legal education has long outlived its usefulness.

In fact, I met the late Liew only once i.e. at the Airport after GE14. We discussed the possibility that he might be returning to the law ministry.

I took the opportunity to inform him that I would be sending him a Memo on proposed reforms in legal education. He nodded in acknowledgement and that gave me some hope.

The state of the judiciary leaves a lot to be desired. Malaysia, especially since Mahathir since 1981, has been ruled by corruption. This is an open secret.

We can still recall CJ Richard Malanjum’s farewell address during which he reminded lawyers and the judiciary that the letter of the law was not the sum total of the rule of law, the basis of the Constitution.

If the CJ had to remind lawyers and the judiciary about the greater emphasis on the spirit of the law in rule of law, surely we have a judiciary and a legal fraternity that is truly lost, not seeing the forest for the trees.

This brings us back to the de facto Law Minister, AG and the Bar Council.

We don’t have to re-invent the wheel.

The Malaysian gov’t should take a good look at the changes being made in England and Wales on legal education. These changes would be finalised by Sept 2021.

Again, we can jump on the bandwagon instead of re-inventing the wheel.

Our present approach in legal education does not prepare graduates for court room work and hence the CJ’s farewell address.

In fact, the mismatch between education and skills has long been conceded by prestigious institutions like the University of London, my alma mater.

Former Judge Gopal Sri Ram also urged the gov’t recently to open up the law education sector and recognise law schools in the Indian subcontinent. He mentioned the Lahore Law College in west Punjab, Pakistan, as an outstanding example.

The judiciary is the only institution in Pakistan that offers some hope in that god-forsaken country which has turned into one huge cemetery for many Pakistanis.

It takes its cue from the supreme court of India which, apart from the supreme court in the US, has few parallels in the world.

Unlike India and the US, there’s an absence of novel developments in law in our Federal court. This is not surprising given the CJ’s farewell address.

The Federal court tried to redeem itself to a certain extent recently by saying that the Perak case law, a notorious example of bad law, was not applicable to Sabah.

The Federal court was granting leave to former Sabah Chief Minister Musa Aman to Appeal against the Court of Appeal taking only three minutes to dismiss his Appeal against the 7/11 ruling in 2018 by the amoi judge from Sarawak. The judge, after the disasterous ruling, was elevated to the Court of Appeal.

The court has been sitting on Musa’s case for over two years. If this case had been settled in two weeks, Musa would have returned as Chief Minister by late May 2018.

Instead, the snap Sabah election was held on Sept 26, amidst the pandemic and has contributed to the present spike in virus cases nationwide. The High Court in Kota Kinabalu rejected an Application to halt the election.

Indeed, the court even agreed with the Federal AG that “while the threat of the Covid-19 is real and present and of concern of all Malaysians, this Application for leave for judicial review is unfortunately premised on tenuous conjecture and unsubstantiated speculation”.

Amidst a spike in virus cases, the Chief Minister was appointed based on the Perak case law, and not the Sabah Constitution. Since the Federal court has yet to hear Musa’s case, there’s no written ruling on the Perak case law.

Also, there’s the little matter of Malaysia being ruled by corruption, and not the rule of law, the basis of the Constitution.

Corruption is not confined to simple giver and taker situation.

Corruption is the act of making everything one touches to go bad.

Confidence in a competent and ethical judiciary is critical.

Judicial Review

I can only think of The Edge which won a judicial review against the Home Ministry. By that time, Zahid had damaged The Edge beyond repair.

It’s difficult to win judicial reviews in Malaysia.

Someone obtained leave of the High Court of Malaya to file judicial review against me over the decision of a gov’t body in my favour.

They lost the judicial review and had to pay costs.

In fact, leave should not have been granted since that someone did not/could not demonstrate errors in facts and errors in law on the part of the gov’t body and/or that they did not follow procedures.

Nevertheless, the High Court granted leave.

I had to spend a lot of time rebutting the other side and also appear in court to make an oral submission.

Apparently, the judge had already decided, and did not allow me to speak more than 90 seconds. At other times, he did not allow me to speak. He queried the other side and allowed them to speak.

In Malaysia, judicial reviews are about procedures, not the merits of the case.

The court only looks at the first thresh hold i.e. whether the gov’t complied with ITS own procedures.

The court does not go into whether these procedures are UNFAIR.

That’s how the Herald, the Catholic weekly, lost the Allah case in the Court of Appeal and Federal court. It won in the High Court probably because the judge was not Melayu.

If I had been in the Federal court, I would have pointed out that the principle cited from the Ananda Marg case from Calcutta, West Bengal, India was not applicable in the Herald case.

The Herald’s legal team comprised nine kangkung lawyers led by a Tan Sri. They went into the history of Allah. The court rightly said it can’t get into theology.

It wanted to focus on public safety and security. Ananda Marg was about public safety and security.

Once bitten, twice shy. I taroh the Federal court kaw kaw and the Herald legal team.

The Herald Editor, Father Lawrence Andrew, seized on another opportunity and called me. He abused me in an American accent, throwing four letter words left and right.

It was about the Vatican. He asked me, “what makes you think that the Vatican is concerned about an insignificant country like Malaysia?”

Now, the Federal court is reluctant to rule on the Jill Ireland case from Sarawak, another BS Allah case.

The Federal court advised the gov’t and the Home Ministry to settle the matter with Jill Ireland.

The court can decline to rule.

In England, judicial reviews first go into whether gov’t procedures were UNFAIR.

Next, it will go into the merits of the case.

In Malaysia, as in the UK, the gov’t falls back on administrative law — not law at all but policies — to rule.

As in the UK, Parliament in Malaysia can only pass a few Acts a year. That’s not enough.

In the UK, Parliament can only pass 60 to 70 Acts a year. So, the gov’t falls back on about 2K administrative laws a year.

There’s no issue in the UK on administrative laws. The court will look at whether gov’t procedures are UNFAIR.

In Malaysia, the court does not look at whether gov’t procedures were unfair. It only looks at whether the gov’t followed ITS own procedures.

That’s the uncivilised approach to law.

Author: fernzthegreat

Joe Fernandez holds a honours degree in management, majoring in economics, and has opted from academia in law to being a jurist. He was trained professionally on the job as a journalist. He's a longtime Borneo watcher, keen on the history and legal aspects of Malaya's presence in Sabah and Sarawak. He teaches the English language privately and has emerged as a subject matter expert in public examination techniques.

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