Johor church gets okay to convert land

The Star

JOHOR BARU: The congregation of Holy Light Church here had reason to rejoice last Sunday – they finally received approval from the Johor government to convert its land from agricultural to religious use after a 16-year wait.

The state executive council met on April 9 and approved the application, said Bar Council member Roger Tan, who is also a congregation member of the 56-year-old English church.

Last Sunday, Tan handed the official letter of approval to senior pastor Rev Nicholas Yeo.

“We are grateful that the Mentri Besar personally intervened in this matter,” said Tan who had highlighted the church’s plight to Datuk Abdul Ghani Othman.

“Within two hours, the mentri besar called back and asked me to inform the church that the government would consider favourably our application after the election. True to his word, our application has been approved.”

In 1989, the church bought the agricultural land in Mukim Plentong, next to the Ponderosa Golf Course. When they applied for the conversion of the land use, they discovered that the state government had other plans for it.

The church then filed a suit against the government in 1995, and the government subsequently withdrew from the land acquisition.

In 1999, the church applied again for the use of the land, which was sub-divided into two lots, to be converted for institutional and religious purposes. In 2000, the state government only approved one piece for institutional use.

Are we paying our judges enough?

IN 2006, a highly respected judge of the United States 4th Circuit Court of Appeals, J. Michael Luttig, resigned to join Boeing Co as its general counsel. His resignation shocked US legal circles at a time when he was something of a superstar in the judicial service who had also been shortlisted as a potential Supreme Court nominee. He was also the youngest judge (at age 37) to be appointed to a Federal Appeals Court in 1991.

In his letter to US President George W. Bush, Luttig explained: "I am convinced that this is the right decision for me at this time, and, most importantly, for my family, to whom I owe my highest obligation. This is especially so, as I am sure you can understand, given that my daughter, Morgan, is rapidly approaching college age, and my son, John, is following not long behind."

At the time of his resignation, Luttig earned US$171,800 (RM548,042) a year, but at Boeing he would no doubt earn many times more.

In the 2006 Year-End Report on the Federal Judiciary, US Chief Justice John Roberts wrote: "In the face of decades of congressional inaction, many judges who must attend to their families and futures have no realistic choice except to retire from judicial service and return to private practice.

"The numbers are sobering. In the past six years, 38 judges have left the federal bench, including 17 in the last two years. If judicial appointment ceases to be the capstone of a distinguished career and, instead, becomes a stepping stone to a lucrative position in private practice, the framers' goal of a truly independent judiciary will be placed in serious jeopardy.

"Inadequate compensation directly threatens the viability of life tenure, and if tenure in office is made uncertain, the strength and independence judges need to uphold the rule of law -- even when it is unpopular to do so -- will be seriously eroded."

Justice Roberts added that federal district judges were paid substantially less than half of what deans and senior law professors at top schools were paid. He argued that associates fresh out of law school in some cities earned more in their first year than the most experienced federal district judges before whom these lawyers hoped to practice some day.

In a way, Chief Justice Roberts is correct to say that low judicial pay threatens judicial independence.

I cannot recall if we have ever before had a Malaysian Luttig resigning as a superior court judge but Raja Azlan Shah, who left the bench to become the Perak Ruler, was an exceptional case.

Here, it is perhaps the reverse with mainly the successful and wealthy court lawyers who can have the luxury of aspiring to join the bench with, perhaps, only a very few who would dare even to dream of being another Zaki or Sri Ram.

I believe here we are not so much concerned about our judges leaving the judicial service for the corporate world and private practice but, rather, with judicial corruption when judges' pay is low and also the inability to attract the most talented and best legal brains to join the judicial service.

Hence, the Bar warmly welcomed the prime minister's announcement at the April 17 Bar Council dinner to review the judiciary's terms of service and remuneration.

In his speech, Datuk Seri Abdullah Ahmad Badawi said: "There is a pressing need to set salaries and compensation to the right levels to ensure that the bench attracts and retains the very best of the nation's talent. This and other measures, which will be announced in due course, will form a comprehensive package of reform to strengthen the capacity and credibility of the judiciary."

The last time we revised the basic salaries of our judges was July 1 last year vide the Judges' Remuneration (Amendment of First and Fifth Schedules) Regulations 2008. Their salaries and perks are shown in the table, but only the salaries will later determine a judge's pension.

In addition to this, it is known too that judges do apply for government land and the federal and state governments do alienate such lands to them. But, are we saying that we are paying our judges enough? I do not think so. In fact, their salaries are nowhere compared with the earnings of top litigation or corporate lawyers in this country.

One should just compare their remuneration with their counterparts in Singapore. I have not been able to locate the Singapore government gazette on the last revision of their judges' remuneration about a year or so ago, but I understand the annual pensionable salary of a Singapore High Court judge is now about S$1 million (RM2.39 million) with no perks.

Frankly, I think we have overworked our judges. Apart from having to lead a life which society expects of them, their work is unending. From hearing cases in chambers and then in open court, many of them even have to take their work home every day. Little time is left to produce good quality judgments simply because they are overwhelmed with hearing cases. They can find some time for themselves and their families perhaps only during the court vacation, and even then this short vacation period is often used to catch up with outstanding matters.

Sadly, we have too few judges around to handle the never-ending backlog of cases.

On the other hand, there are fewer cases filed in Singapore courts partly because many litigants opt for alternative dispute resolution through arbitration or mediation. Singapore judges also are assisted by an efficient electronic court system from the time of filing to hearing and finally disposing of the cases.

Here, many of our judges still have to laboriously take down by hand the notes of proceedings especially in criminal trials because the law has yet to be changed to allow electronic recording and transcription services. One can only imagine what the poor judge has to do when he has to write down every word whenever a chemist or a DNA expert gives evidence.

So, there is no surprise when de facto law minister Datuk Zaid Ibrahim revealed in Parliament on May 8 that the backlog in the High Court was 91,702 cases, with 125,944 in the Sessions Court and 777,703 in the magistrate's courts.

In this respect, there is also an urgent need to address the salaries of our Sessions Court judges and magistrates. Currently, a newly recruited magistrate gets a basic monthly pay of RM1,989. He also receives a monthly public service allowance of RM300, a housing allowance of RM250, a critical allowance of RM99.47 and a cost of living allowance of RM200.

But, such pay is not commensurate with the extent of the judicial powers a magistrate possesses. Can a magistrate even rent a room in a city for RM250? Those posted to smaller towns may be given government quarters usually built in colonial days but more and more of such quarters have now been taken over by the local authorities for their own use.

Applying for government quarters may take months and often there is just none for such junior officers who are treated, frankly, just like any other ordinary junior civil servant by the government departments.

Then there are other expenses like car loans and utility bills.

It is, indeed, very dangerous for a cash-strapped magistrate to hear cases involving all sorts of questionable personalities. What if he is offered by an interested litigant, or lawyer for that matter, to stay in his fully furnished house for just RM250?

This reminds me of a story a judge narrated to me when he was first posted to another town. On the first day, he decided to join a magistrate for lunch at the court canteen. When he went to the counter to pay, he was politely told that a gentleman seated at the other end had already settled the bill.

The nicely dressed gentleman waved back grinning with a respectful bow. But the judge rightly declined and paid for the bill. When he asked the magistrate who that gentleman was, the magistrate replied that the gentleman was a local moneylender.

To my mind, this is indeed a frightening story. Imagine for a moment if a magistrate, being the most junior judicial officer, started accepting a free cup of tea; who could tell then what he would later accept when he reached higher judicial office? Free air tickets for holidays overseas for his family?

In fact, there were many Malaysian Luttigs who gave up as Sessions Court judges and magistrates later to become successful and wealthy lawyers. Actually, it is all right for such Luttigs to leave the judicial service, but is certainly not an encouraging phenomenon if they remain within the service.

This also reminds me of the bantering words of Tun Mohamed Suffian who said at a dinner given in his honour shortly after his retirement as lord president on Nov 12, 1982:

"The morning after I retired, a Rolls Royce arrived at my house with a message that I was required to attend a very important board meeting. Without further ceremony, I was taken to the penthouse of the Chartered Bank. Here, I was appointed chairman and required to call the meeting to order.

"There were only three items on the agenda. Caviar, champagne and any other matters arising therefrom. At noon, we adjourned to a private room in the Shangri-La for a sumptuous lunch. When I was driven back home at 3pm, I greatly regretted I had not retired years earlier!"

I certainly hope the above statement will not create any Luttigs among our judges, but it is a strong message nevertheless to our government that our judges and magistrates deserve more because they undertake a sacred duty to dispense justice without fear or favour. Our judges should not be allowed to worry over money problems causing them to struggle with their conscience.

It is hoped that the government will address this serious issue together with the setting up of the Judicial Appointments Commission so that it will attract especially our best legal scholars to apply and join the judicial service.

The day the Bar dined for justice

ON July 24, 2003, the then chief justice Tan Sri (now Tun) Ahmad Fairuz Sheikh Abdul Halim announced the promotions of eight judges. The four new Federal Court judges were Datuk Abdul Hamid Mohamad, Datuk Wira Mohd Noor Ahmad, Datuk Pajan Singh Gill and Datin Paduka Rahmah Hussain.

Four other High Court judges were elevated to the Court of Appeal: Datuk Nik Hashim Nik Ab Rahman, Tengku Datuk Baharudin Shah Tengku Mahmud, Datuk Arifin Jaka and Datuk S. Augustine Paul.

However, the Malaysian Bar was not happy with the promotion list because its then president, Kutubul Zaman Bukhari, had issued a statement on July 5 on the promotions arguing that if senior judges were bypassed in promotions in favour of junior ones, there must exist reasons which must be explained to the public.

"Anything less than a full and convincing explanation will damage public confidence in the administration of justice."

He said the Bar would, if necessary, call an extraordinary general meeting to discuss the matter.

In announcing the new appointments, Ahmad Fairuz said seniority was not the only criterion, and that if it was, then there would be much deadwood.

"The seniors will not work because they know they will move up when the time comes because they are seniors."

He also denied that the promotions of three of the eight judges -- Arifin, Paul and Pajan -- were a "reward" for their decisions in cases involving Datuk Seri Anwar Ibrahim.

Responding to the promotions, Khutubul issued the following statement:

"Today's announcement of promotions in the judiciary, which saw so many senior judges being passed over, has unfortunately confirmed the fears of the Bar that such an important aspect of our system of justice has been lightly treated, with indifference to transparency and objectivity, and in the absence of consultation with the Bar.

"There has been no credible explanation for the en masse bypass of senior judges, and none is apparent. This process, or lack of proper process, has been carried out despite the clarion call by the Bar Council as exemplified in the Bar Council's press statement dated July 5, 2003.

"The Bar Council had taken great pains to explain that, when senior judges are bypassed en bloc in favour of junior ones, the question that immediately presents itself is not so much the suitability of the latter, but rather on what acceptable criteria have the former been considered unsuitable and therefore not been chosen (as would otherwise have been in the ordinary course of things).

"This issue is of legitimate concern to the Bar and the public, especially when passing-over appears to have become the rule rather than the exception.

"Today's event has exposed the alarming breakdown of a much needed mechanism for the determination of fair and proper judicial promotions in this country.

"It leaves many questions unanswered, and sinks the system into poorer health."

With this, Khutubul reiterated the Bar's call made even much earlier for an independent judicial appointments and promotions commission in consultation with the Bar to ensure the appointments and promotions process is transparent, structured, accountable, objective and consultative in manner.

Hence, the Bar Council called an EGM on Oct 5, 2003, to pass a resolution for the inception of this commission and also to call on the chief justice to disclose and make public the method and criteria employed in the July 24, 2003 judicial promotions.

In response, former prime minister Datuk Seri (now Tun) Dr Mahathir Mohamad said that in the event that the Bar Council's resolution was adopted, the judges appointed would be indebted to the council and would no longer be independent.

The then de facto law minister, Datuk Seri Rais Yatim, said the appointment of judges must be decided by law and not through public sentiment or pressure from interest groups.

Writing in the New Sunday Times on Sept 28, 2003 ("Appointment of judges: Bar should act rationally"), lawyer Datuk Zaid Ibrahim joined in calling on the Bar not to go ahead with the EGM and instead use diplomacy when dealing with the judiciary, but he did not say that he was against the Bar's proposal.

Alas, due more to the members' insouciance and the stringent quota requirement, the EGM scheduled on Oct 4, 2003, could not proceed.

But in the government's view, Rais said the lack of quorum exemplified the conclusion that the legal fraternity, especially practitioners, were not of the same view as the council.

The Bar Council did not lose hope and it continued with its call for the commission whenever an opportunity arose.

Expectedly, the Bar's lukewarm relationship with the judiciary worsened as thenceforth Ahmad Fairuz virtually stopped all dialogue with the Bar Council, and refused to meet Khutubul.

Instead, he chose only to engage with the state Bar committees with the council wondering whether this was a divide-and-rule tactic.

At the Johor Bar annual dinner on March 11, 2006, in Johor Baru, Ahmad Fairuz shocked everyone present by revealing that he did not like Khutubul and believed that the latter's successor, Yeo Yang Poh, would be a better person to work with. But he was obviously mistaken.

Yeo was no less determined and convinced than his predecessor that there ought to be a commission. Backed by a strong Bar Council and its website, Yeo continued with the mission.

In a statement dated June 6, 2006, he said if the commission was implemented, "this will prove to be one of the greatest legacies that the government and the people of Malaysia can leave behind for the benefit of generations to come".

But the Bar's call for such a commission continued to fall on deaf ears.

The new de facto law minister, Datuk Seri Nazri Aziz, felt that it should be the judiciary and not the executive who should initiate this.

Thanks to the infamous V.K. Lingam video clip, the need for a more transparent and accountable appointments mechanism could not have been more urgent.

On Sept 26 last year, the Bar led by its president, Ambiga Sreenevasan walked from the Palace of Justice, Putrajaya, to the Prime Minister's Office to hand over the memorandum calling for the formation of a commission.

Hence, needless to say, when the prime minister announced last Thursday that the government agreed to the setting up of a commission, the Bar gave him a standing ovation.

Indeed, the Bar must acknowledge the efforts of Zaid, and the determination of the previous and current Bar leaderships for this struggle now coming to fruition.

If Sept 26 is remembered as the day the Bar walked for justice, then April 17 should be celebrated as the day the Bar dined for justice, savouring the fruits of its many years of struggle for an independent commission leading to an independent judiciary.

The Bar proposes that this commission acts in a recommending capacity in that when the prime minister consults the chief justice over judicial appointments before advising the Conference of Rulers, under Article 122B of the Federal Constitution, the chief justice's advice to the prime minister on candidates will be the candidates identified by this commission.

In other words, it only changes the chief justice's constitutional role in this process and not that of the prime minister and the Conference of Rulers.

With this procedure, it will also render the appointment of judicial commissioners unnecessary.

The Bar is of the view that the commission should comprise 13 members made up of the following:

- Chief justice, who should head the commission;

- The attorney-general;

- The president of the Court of Appeal;

- The chief judge of Malaya;

- The chief judge of Sabah and Sarawak;

- The minister of law or his nominee;

- President or vice-president of the Malaysian Bar;

- Three senior practising lawyers (nominated by the Bar Council); and,

- Three lay people who are not practising lawyers and have never held judicial office (to be appointed by agreement of the other members of the commission).

In this respect, I wish to say that any argument that the judiciary will be beholden to the Bar is fallacious as the Bar, though a minority in this composition, is nevertheless a major stakeholder in the administration of justice.

To say so will mean also that judges appointed are beholden to the executive.

As Ambiga said at the dinner last Thursday, this issue should not arise as judges know that they discharge their responsibilities impartially, independent of who the appointing authority is, guided only by their oath of office and their conscience.

However, it cannot be denied that whoever is nominated and appointed to sit in this commission does matter a great deal.

This is echoed by Chief Justice Datuk Abdul Hamid Mohamad in his speech at the recent Judges' Conference. He said: "They (the commissioners) themselves must be people of integrity, knowledgeable, incorruptible, fair and without any vested interest. They should not have an agenda of their own. Neither should they be the conduit for lobbying for the judgeship.

"Again, as I have said at Universiti Utara Malaysia, whatever system we have, in the final analysis, it is the people who implement the system that matters."

Indeed, there is no perfect mechanism but this is nevertheless the best option available as many Commonwealth countries have also adopted it.

Even Britain has opted for such an independent judicial appointments commission, doing away with the centuries-old practice of letting the lord chancellor make or recommend judicial appointments to the Queen.

But here, we have the executive and the rulers who continue to act as the check and balance just in case the commission fails in its constitutional duty, and vice versa.

In conclusion, let no one mistake the Bar's resolve when it sets its mind into doing something which is good for the people and country.

The public can be assured that notwithstanding this historic announcement, the Bar will not sit back until the commission becomes a reality.

What's fine for some is not for others

New Sunday Times
by Yong Huey Jiun

Some say it is a populist measure. But response to the waiver of summonses by the new state administrations is all but warm. YONG HUEY JIUN talks to the different parties to find out what about the controversy

ONE of the first things Penang Chief Minister Lim Guan Eng did after assuming power was to waive summonses issued (before March 11) for parking and illegal hawking offences. Lim's announcement, which appeared to stun many, came hours after he was sworn in as the chief minister.

For Chong Foo Shen (not his real name), the announcement came a little too late. The 32-year-old settled his two parking summonses in January.

"I think the waiver is unfair to those who have paid their summonses. In the interest of fairness and equality, they should get a reimbursement," says Chong.

Little did Lim know then the seemingly innocuous (even populist, some may say) move would spark a controversy that would spiral out of control and plague his leadership a month after taking the helm.

Already beleaguered with problems stemming from the power transition, what was supposed to be a "fresh start" for the new administration has generated a backlash among critics and legal experts.

Joining the torrent of criticism, Bar Council member Roger Tan denounced Lim's action as interfering with the power of local authorities, lacking rudimentary knowledge of law principles, and violating the (Article 8) Federal Constitution.

But Lim stood firm and so did Perak Menteri Besar Mohammad Nizar Jamaluddin, who also declared a similar waiver in Perak.

Despite objections from several quarters, Perak senior state executive councillor Ngeh Koo Ham said in a statement on Wednesday the state government would stick to its decision.

He defended the state government's action, noting that "the state government has jurisdiction over the local government" (Schedule 9), as enshrined in the Federal Constitution. DAP national chairman Karpal Singh backs his fellow party member's statement, saying that "the Constitution supersedes any provisions of the Local Government Act".

Tan disagrees: "The Local Government Act is a legislation made under Article 76(4) of the Federal Constitution, of which Schedule 9 is subject to. Schedule 9 merely states the state government has the power to legislate; however, it is not a licence for the state government to ignore existing laws."

The main contention is that local councils are not state government departments. There have been strident calls for the revival of local council elections. Some say subjecting the local government to the directive of the state government undermines or defeats the very purpose of the push for reform.

While critics blast the move, Karpal claims the waiver is a form of amnesty.

An amnesty is granted on rare and significant occasions, such as the release of prisoners during the 25th Merdeka anniversary.

That Karpal referred to the waiver as an amnesty -- one which all will benefit from regardless of political preferences -- should strike a chord given that the opposition's victory was a historic event. But Tan argues that "chief ministers do not possess the power to grant amnesties".

Tan went one step further to note that some of the summonses may have expired.

"Technically, they may be prosecuted if they have expired. And only the local authorities have the power to prosecute."

Karpal says that the waiver does not bypass any authority as long as prosecution has not commenced. In past interviews, he had said: "The amnesty granted cannot be said to impinge on the powers of the public prosecutor because the compound notices and summonses have not reached the stage of prosecution."

In the midst of the ruckus, Housing and Local Government Minister Datuk Ong Ka Chuan had said chief ministers could advise the local authorities on the issue but ultimately, it was left to the heads of councils to decide.

When Lim first declared the waiver, he had said he wanted to "reduce the burden faced by the people, especially the poor". In one of his speeches, Lim said there had been many complaints on how the summonses were issued haphazardly and policies which were not carried out in a transparent manner.

Some offenders refuse to pay because they feel aggrieved, says executive council member Chow Kon Yeow, who is in charge of local government.

"They get a ticket even if they park for just a while. Or hawkers are slapped with a RM250 fine when they narrowly breach the perimeter of the stipulated area."

S.M. Mohamed Idris, president of the Consumers Association of Penang, says the waiver is clearly a violation of law. He points out that the move is unfair to those who have settled their summonses.

"Car owners should not feel burdened because if they can afford to own a car, surely they can afford to pay up," he adds.

While the proposal may seem unfair to law-abiding citizens, Gunaseelan M. Segaran, with three outstanding summonses, welcomes and expresses support for the move.

"This does not happen regularly. It is a one-time waiver by the chief minister to express his appreciation for the people's support," he says.

It is not known how much the waived summonses would total. From a monetary point of view, Chow does not think the councils' operations would be affected as they are "uncollected compounds". But local councils face financial constraints and frequently have to rely on federal grants.

"It does not make sense to waive the summonses since they serve as a source of revenue for the local authorities," says Tan.

Right or wrong, some parties have grown weary of the issue and are ready to put it behind them. Whether one is for or against the waiver, both sides agree there is a greater urgency to focus on the myriad of issues of reform facing the administration in the next few years.

"It should not deflect attention from other more important issues," stresses Idris.

"The matter should be laid to rest. It's time to move on."

The Attorney-General's Chambers and the Perak government were not available for comment.