Latest news with #ShadSaleemFaruqi
Malaysiakini
16 hours ago
- Politics
- Malaysiakini
Strengthening lower court judges' independence
'To the ordinary citizen, the quality of justice is what happens in the subordinate courts. Regrettably, most of the safeguards for judicial independence are unavailable to the hundreds of judges of our Sessions and Magistrates Courts.' COMMENT | These words by Emeritus Professor Shad Saleem Faruqi, delivered at the 5th Raja Aziz Addruse Memorial Lecture during the International Malaysia Law Conference in 2018, remain a timely reminder that the justice most Malaysians experience is in the subordinate courts. Thus, safeguarding the independence of judicial officers at this level is essential in upholding public confidence in the justice system. Under Article 138 of the Federal Constitution, judicial and legal services are combined into one structure overseen by the Judicial and Legal Service Commission (JLSC). From the standpoint of judicial independence, this framework presents challenges that warrant careful consideration in ensuring that independence is defended at every level of the judiciary.
Barnama
4 days ago
- Politics
- Barnama
Understanding The Constitutional Effect Of A Royal Pardon - Dr Shad Saleem Faruqi
KUALA LUMPUR, Aug 16 (Bernama) -- Following is an op-ed by Emeritus Prof Datuk Dr Shad Saleem Faruqi of Universiti Malaya regarding the Royal Pardon granted to Prime Minister Datuk Seri Anwar Ibrahim: Now and then, the placid surface of the constitutional lake is buffeted by legal storms. This is the situation now. A few prominent opposition leaders have questioned the constitutional right of Datuk Seri Anwar Ibrahim (PMX) to hold the office of the Prime Minister because of Articles 48(1)(e) and 48(3) of the Federal Constitution. Article 48(1): Article 48(1)(e) of the Federal Constitution provides that a person is disqualified for being a member of Parliament if he has been convicted of an offence and sentenced to imprisonment for a term of not less than one year or to a fine of not less than RM 2,000 and has not received a free pardon. The key words are 'and has not received a free pardon'. The opposition leaders concede that PMX had indeed received a royal pardon from the Yang di-Pertuan Agong (YDPA) under Article 42 in May 2018. However, their argument is that a royal pardon is not enough due to Article 48(3). Article 48(3): Article 48(3) disqualifies a person for being an MP for five years unless the YDPA removes the disqualification. The opposition submission is that in 2018, the YDPA only pardoned PMX and did not remove the disqualification under Article 48(3). They therefore submit that PMX's appointment as PM in November 2022 is still during his 5-year disqualification period. The indirect implication of this allegation is that PMX's by election was a violation of Article 48(1)(e). These are important constitutional issues that require clarification to prevent confusion to the public. First, a royal pardon under Article 42, if free or full, removes all adverse legal consequences of a criminal conviction. As was laid down in the British case of Regina v Foster (1985), the subject of the pardon is freed of all pains, penalties, and punishments that ensued from the conviction. On this view, there was no further need for the YDPA to issue another order for the removal of the Article 48(1)(e) disqualification. Second, it would be different if, instead of a pardon, what was granted was something lesser - a conditional pardon by way of reprieve, respite, suspension, remission or a commutation. A case in point is Dato' Mokhtar Hashim who was sentenced to death for the 1982 murder of fellow politician, Dato' Mohamad Taha Talib, but the death sentence was later commuted to life imprisonment. The commutation did not obliterate the conviction for murder but only reduced the penalty.
Malay Mail
10-05-2025
- Politics
- Malay Mail
At forum, law experts say JAC good for Malaysia, suggest limiting PM's role in judges' selection, appointments
KUALA LUMPUR, May 10 — The Judicial Appointments Commission (JAC) — a panel which filters candidates to be judges based on their merits, ability and integrity — was a good step forward for the selection of judges in Malaysia, legal experts told a forum organised by the Malaysian Bar today. In calling for the JAC to be retained and further improved, the law experts even discussed suggestions such as amending the Federal Constitution to include and enhance the JAC's position, and limiting the prime minister's role in the judicial appointment process. Currently, there is a two-stage process in Malaysia for the selection and appointment of judges. The JAC first vets through potential candidates to make sure they are qualified and suitable and then votes on these candidates, before recommending the selected candidates to the prime minister. If the prime minister accepts these recommended names, the prime minister then gives advice to the Yang di-Pertuan Agong for these candidates to be either appointed or promoted as judges. The Agong makes the appointment after consulting the Conference of Rulers. But the prime minister can ask for the JAC to provide other recommended names if he does not accept the candidates given, before he eventually gives advice to the King for judges to be appointed. Emeritus Prof Datuk Shad Saleem Faruqi, who was formerly a JAC member, said the JAC should continue to exist and suggested that the prime minister's role be limited to just a formal role during the process of appointing judges. 'I personally support the existence of the JAC, though I recognise there is need for some reforms, especially on the issue of whether the recommendations of the JAC should be binding on the prime minister,' the holder of Universiti Malaya's Tunku Abdul Rahman chair said as a speaker at the forum. 'I think the prime minister and the Conference of Rulers, their role should be a formal role whereby the names are sent and there's some consultation. 'For example, the prime minister sends the name to the King, the King is required to consult with the Conference of Rulers. 'Consult' is not the same thing as 'consent', but consultation is useful because some facts might come out,' he said, noting that there was previously a Conference of Rulers meeting many years ago when a judge who was to be promoted was discovered to have had more than 30 unwritten judgments. 'I think consultation is good, but ultimately the recommendation of the JAC should be binding,' he said, adding that the prime minister, Agong and the Conference of Rulers should continue to play a role in the process of appointing judges. Co-chairperson of Bar Council Civil Law and Law Reform Committee Datuk Seri M. Ramachelvam addresses the floor during the Judicial Independence in Malaysia Forum in Kuala Lumpur May 10, 2025. — Picture by Sayuti Zainudin Fellow forum speaker Datuk Seri M. Ramachelvam, who is co-chair of the Bar Council's Civil Law and Law Reform Committee, said the introduction of the JAC has improved the process of how judges are appointed in Malaysia and that the law should be amended so that the prime minister is bound to follow the JAC's recommendations. He said many other Commonwealth countries had also introduced a JAC, but they have not removed the formal role of the prime minister in the process of appointing judges. He also said the recommended model clause in the Commonwealth is for the JAC's recommendations to be binding on the prime minister, while also maintaining the formality of sending the recommendations to the prime minister. Lawyer Alex De Silva, who proposed the motion adopted by the Malaysian Bar as a resolution in March this year to defend the judiciary's independence and who was also a speaker at the forum, said the formation of the JAC in Malaysia in 2009 'was a good thing' and that it had brought 'much needed reform'. 'I think one thing we cannot run away from, as much as we say we want to remove or lessen the role played by the prime minister, you cannot run away from the fact that in most jurisdictions, even if we go to UK, the prime minister is involved,' he said, adding: 'The only way we can do it is perhaps lessen his role, but we cannot remove him from the process.' International Islamic Universiti Malaysia Lecturer Associate Prof Datuk Shamrahayu Ab Aziz speaks during the Judicial Independence in Malaysia Forum in Kuala Lumpur May 10, 2025. — Picture by Sayuti Zainudin Datuk Shamrahayu Ab Aziz, who was also a former JAC member, said at the forum: 'I believe by having JAC, we are in the right direction.' Shamrahayu, associate professor and lecturer at International Islamic University Malaysia, said it 'may not be possible' in both Malaysia and other countries to totally remove the participation of the government's executive branch, but said there could instead be 'certain limitation' on the prime minister's role instead in the process of appointing judges. She said there must be mechanisms to ensure the executive's involvement in the process was a 'controlled one' and that the executive is not given total discretion. Proposing that JAC's role be inserted into the Federal Constitution, she said Malaysia should also consider giving JAC members security of tenure so that the 'JAC will also give their recommendations to the prime minister without fear or favour'. She said the criteria of those to be selected as JAC members should also be further discussed. These legal experts were all speakers in two separate panels at the Malaysian Bar's forum titled 'Judicial Independence in Malaysia: Past Lessons, Current Challenges'. Other panellists at the forum were former JAC member and retired Court of Appeal judge Datuk Mah Weng Kwai and lawyer Mohamed Haniff Khatri Abdulla.
Daily Express
10-05-2025
- Politics
- Daily Express
What happens when PM gets recommended names for judges? Ex-JAC members share experiences
Published on: Saturday, May 10, 2025 Published on: Sat, May 10, 2025 By: Ida Lim, MM Text Size: Holder of the Tunku Abdul Rahman Chair, Universiti Malaya Emeritus Prof Datuk Shad Saleem Faruqi address the floor during the Judicial Independence in Malaysia Forum held at Raja Aziz Addruse Auditorium, Wisma Badan Peguam Malaysia. — Picture by Sayuti Zainudin Kuala Lumpur: When the Judicial Appointments Commission (JAC) recommend names to be appointed as judges, does the prime minister of Malaysia accept all these recommendations? During a forum by the Malaysian Bar here, two former JAC members today confirmed that 'the answer is no', including Former Malaysian Bar president Datuk Mah Weng Kwai. 'When it goes to the PM's Office, everything is done so diplomatically, you will never get an answer from the PM's Office to say so and so not to be appointed. What we will hear is, can we have other names please,' said Mah, who is also a retired Court of Appeal judge. Emeritus Prof Datuk Shad Saleem Faruqi, holder of Universiti Malaya's Tunku Abdul Rahman chair, replied: 'Same here, the answer is no. In some cases, we rejected candidates and we found their name on the list.' The duo were panelists in the first session titled 'Safeguarding the Bench: Judicial Independence in Malaysia' at the Malaysian Bar's two-hour-plus forum 'Judicial Independence in Malaysia: Past Lessons, Current Challenges'. They were replying to the forum session's moderator and Malaysian Bar vice president Anand Raj, who had asked them for if 'all recommendations of JAC were accepted by the executive' while both of them were in the JAC. In Malaysia, the JAC vets through potential candidates to be appointed or promoted as judges by checking if they are qualified and fulfil the criteria under the law. The JAC then votes on these candidates before forwarding the names as recommendations to the prime minister, before the prime minister gives advice to the Yang di-Pertuan Agong for the judges to be appointed. But under the existing laws under the Judicial Appointments Commission (JAC) Act 2009, the prime minister can choose not to accept the names recommended by the JAC, and instead ask the JAC to give additional names or other candidates. Datuk Seri M Ramachelvam, fellow panellist at the same forum session and co-chair of the Bar Council's Civil Law and Law Reform Committee, said the JAC has brought about a 'much better process' and 'brought much improvement to the appointment of judges from what it was'. But Ramachelvam said Malaysia should head towards the direction of making JAC's recommendations 'binding' on the prime minister, and said this would require amending the Federal Constitution to mandate the prime minister to follow the JAC's recommendations. * Follow us on Instagram and join our Telegram and/or WhatsApp channel(s) for the latest news you don't want to miss. * Do you have access to the Daily Express e-paper and online exclusive news? Check out subscription plans available. Stay up-to-date by following Daily Express's Telegram channel. Daily Express Malaysia
Malay Mail
10-05-2025
- Politics
- Malay Mail
What happens when PM gets recommended names for judges? Ex-JAC members share experiences
KUALA LUMPUR, May 10 — When the Judicial Appointments Commission (JAC) recommend names to be appointed as judges, does the prime minister of Malaysia accept all these recommendations? During a forum by the Malaysian Bar here, two former JAC members today confirmed that 'the answer is no', including Former Malaysian Bar president Datuk Mah Weng Kwai. 'When it goes to the PM's Office, everything is done so diplomatically, you will never get an answer from the PM's Office to say so and so not to be appointed. What we will hear is, can we have other names please,' said Mah, who is also a retired Court of Appeal judge. Emeritus Prof Datuk Shad Saleem Faruqi, holder of Universiti Malaya's Tunku Abdul Rahman chair, replied: 'Same here, the answer is no. In some cases, we rejected candidates and we found their name on the list.' The duo were panelists in the first session titled 'Safeguarding the Bench: Judicial Independence in Malaysia' at the Malaysian Bar's two-hour-plus forum 'Judicial Independence in Malaysia: Past Lessons, Current Challenges'. They were replying to the forum session's moderator and Malaysian Bar vice president Anand Raj, who had asked them for if 'all recommendations of JAC were accepted by the executive' while both of them were in the JAC. In Malaysia, the JAC vets through potential candidates to be appointed or promoted as judges by checking if they are qualified and fulfil the criteria under the law. The JAC then votes on these candidates before forwarding the names as recommendations to the prime minister, before the prime minister gives advice to the Yang di-Pertuan Agong for the judges to be appointed. But under the existing laws under the Judicial Appointments Commission (JAC) Act 2009, the prime minister can choose not to accept the names recommended by the JAC, and instead ask the JAC to give additional names or other candidates. Datuk Seri M Ramachelvam, fellow panellist at the same forum session and co-chair of the Bar Council's Civil Law and Law Reform Committee, said the JAC has brought about a 'much better process' and 'brought much improvement to the appointment of judges from what it was'. But Ramachelvam said Malaysia should head towards the direction of making JAC's recommendations 'binding' on the prime minister, and said this would require amending the Federal Constitution to mandate the prime minister to follow the JAC's recommendations.
