Remaking Malaysia: ‘The powerful may not be there to protect you’

This article first appeared in The Edge Malaysia Weekly, on December 24, 2018 - December 30, 2018.

I am confident that the new leadership in the judiciary will restore public confidence in the judicial institution and that the judiciary will function in a better environment than before. — Mohd Hishamudin Photo by Patrick Goh/The Edge

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FORMER Court of Appeal Judge Datuk Seri Mohd Hishamudin Yunus is noted for his bold judgments and has made numerous landmark decisions in over two decades in the judicial service. In November, law firm Lee Hishammuddin 

Allen and Gledhill, where Hishamudin is now a consultant, published in his honour a discussion of his outstanding judgments by leading legal minds in the country. In conjunction with the book launch, Hishamudin answered questions by S Kanagaraju and Rash Behari Bhattacharjee.

The Edge: The new government has appointed you as a member of the Judicial Appointments Commission (JAC), chairman of the Malaysian Competition Commission (MyCC) and chairman of the Independent Committee on the Management of Foreign Workers. How are you coping with the workload?

Datuk Seri Mohd Hishamudin Yunus: I am doing fine, thank you for asking. I must admit that at times, things can get rather busy with meetings to attend and materials to read. I have to manage my time well. But I do enjoy carrying out the tasks. And just to add: the appointment to the Independent Committee on the Management of Foreign Workers is only a temporary appointment. It will be over by the first half of February next year.

 

With regard to MyCC, what is the latest on the dispute between MyCC and the General Insurance Association of Malaysia (PIAM) over insurance claim payments for motor repairs?

In the light of my recent appointment as chairman of the commission, some parties have requested for fresh oral representations before the commission. The fresh oral representations will be heard early next year.

 

What areas are you planning to examine to enhance competition?

Enforcement and advocacy remain at the forefront of MyCC’s role as Malaysia’s guardian of competition law and policy. MyCC has been actively engaged in issues that tug the heart of Malaysians such as abusive monopolistic behaviour and syndicated price hikes. MyCC will be firm to correct these market behaviours.

 

With regard to the committee on foreign workers, we understand you have been meeting stakeholders to discuss relevant issues on the management of foreign workers. The problems have been with us for decades. What must happen for workable solutions to succeed now?

We are now reviewing the entire existing policies and framework pertaining to the management of foreign workers. From our observation, the whole system is disjointed and unwieldy. We also find that there are many issues that point to mismanagement and corruption in the management of foreign workers. Therefore, we will be making the necessary recommendations to the government and we hope it will have the political will to implement them.

Judicial service

How does the JAC ensure that there is no bias in the selection of candidates for judicial positions?

Members of the JAC consider, among others, the integrity, competency and experience of a candidate during the selection process. In other words, selections are based purely on merit.

A member of the JAC is required to disclose if he is connected to any of the candidates during the selection process. After such disclosure, the member shall not be present in any decision-making process involving that particular candidate.

In my view, there are sufficient safeguards in the Judicial Appointments Commission Act 2009, and as long as the members of the JAC observe their obligations and duties as provided for under the law, then there should not be any elements of bias in the selection of candidates.

But I must concede that there are some weaknesses in the JAC Act., which have to be addressed in order to improve the system.

Since the 1988 judicial crisis, the independence of the judiciary has been compromised by the requirement of the prime minister’s approval in judicial appointments. Is anything being done to rectify this?

So far, none. I hope the new government will rectify the situation by introducing a mechanism making it obligatory for the government to accept the candidate recommended by the JAC. But that will involve amending the Federal Constitution. But pending that happening, it would be good if a convention or practice was to evolve where the prime minister will respect the recommendations of the JAC on judicial appointments.

In your own case, the previous prime minister did not support the JAC’s recommendation that you be promoted to the Federal Court although you were then the senior-most Court of Appeal judge. What are your feelings on that?

Of course, [I was] naturally disappointed. I am only human. But my spirit was not dampened because I received very good support from my wife, family and friends. I also received good support from the legal fraternity. The judgments that I made were based on my convictions, and without fear or favour. I have done what I should have done.

Do you think others should have spoken up on this matter?

With the then prime minister, whether others should have spoken up or not did not concern me much as it might not have brought any difference to the matter. My priority at that time was to discharge my duty as a judge and uphold the rule of law.
 

Do we have a sufficiently qualified pool of judges?

There is currently a good number of good and qualified judges in the judiciary, but I do not deny the fact that there are some bad apples in the basket. The judicial temperament and quality of the judgments written by some of them leave much to be desired.

Should more members of the Bar be appointed to the judiciary?

As a member of the JAC, I think it is not appropriate for me to state any preference. However, I must emphasise that appointments to be a judge of the superior courts must be done based on the merits and qualifications of the candidates, and not solely on whether the person is from the Bar or the Judicial and Legal Service.

Should the Judicial and Legal Service be separated?

Being a former member of the Judicial and Legal Service, and having held various positions in both branches of the service, I would say “no”, it should not be separated. The Judicial and Legal Service should remain as it is. It is a good training ground for those aspiring to be judges. He or she would have had the all-round experience of being on the Bench (for example, as magistrate, registrar or Sessions Court judge) as well as being in the Attorney General’s Chamber (for example, as deputy public prosecutors, federal counsel in the Civil Litigation Division, Parliamentary draftsman or an officer in the Advisory Division) before being elevated to a judge. Having had this diversity of judicial and legal experience, he or she would, in my opinion, make a better judge.

Should we have an independent prosecution service like the UK’s Crown Prosecution Service?

Yes, we should. Legal developments had taken place in developed Commonwealth countries such as England and Wales, Canada, Australia and New Zealand, where by statute or convention, the attorney-general ceases to exercise the powers of prosecution; such powers being vested in the Director of Public Prosecutions, who exercises such powers independently of the Attorney-General. In some jurisdictions, the role of the Attorney-General regarding prosecutions, if at all, has become merely supervisory in nature. 

The purpose of these developments is essentially to enhance the integrity in government by statutorily ensuring the independence of the prosecution decision-making function from inappropriate political control, direction and influence.

However, as of now, the prosecutorial powers are vested solely in the attorney-general. Therefore, the proposal of having an independent prosecution service requires an amendment to the Federal Constitution.

What do you think of the quality of Malaysian prosecutors and lawyers? Do they need more training?

In my personal view, we have a mixed quality of prosecutors and lawyers. While I was sitting on the bench, I did come across some poorly-skilled prosecutors and lawyers, especially among the younger ones. Some had poor command of the English language. In legal practice, continuous acquiring of knowledge training is important. It will help to improve and maintain high standards of legal services available in the market.

After decades of control by one political establishment, networks and inner circles must be a force to contend with. What steps are needed to put the judiciary on a new footing?

 As I said in a public speech recently, I am very optimistic that now, with stronger public awareness of the importance of an independent judiciary and the recent change in the political landscape, things will change for the better. I am confident that the new leadership in the judiciary will restore public confidence in the judicial institution and that the judiciary will function in a better environment than before. But I would like to see the provisions pertaining to the JAC to be in the Federal Constitution instead of merely being in an Act of Parliament. It will be much better if it is entrenched in the Constitution that the recommendations of the JAC on appointments of judges are final. The membership of the JAC should be modified so that it will be less ‘judge-heavy’. It should be enlarged to provide for better diversity in representations, including the participation of lay (non-lawyer) members. It is also a good option to put in place a system where the appointment of the members of the commission are also done by other stakeholders instead of all appointments being done solely by the prime minister. We can study the models of other jurisdictions.
 

The overall quality of judgments is not what it used to be. There is also the problem of delayed judgments. What are your comments?

Quality judgments and timely delivery of judgments have a lot to do with the quality of judges we have. We cannot deny the fact that there are judges who are not performing well and are unable to meet our expectations. The judges concerned must pull up their socks. Holding the office of a judge is a public trust, and judges are comfortably remunerated from public funds. Those not prepared to meet the desired standard of performance must gracefully resign. It is not fair to the public and the justice system for them to continue to cling on to office.

But to be fair to the judges, do allow me to say, also, that in some courts, there are simply too many cases. We may not have enough High Court judges to handle the high volume of cases. So some allowance must be given here. Yet, this is still no answer to poor quality judgments and inordinate delay in delivering decisions or grounds of judgments.

Corruption

Corruption has spread its tentacles deep into our society. What measures are needed to safeguard the judiciary from its influence?

Corruption can take many forms. Accepting a bribe is a form of corruption. But it is not always the case. Purposely giving judgment in favour of the government with the hope of promotion is also a kind of corruption. The judiciary is the last bastion of hope for the people. But if the judiciary is also corrupt, then there will be a breakdown in law and order. Hence, a corruption-free judiciary is essential. Towards achieving this, we need to appoint persons known to be of high integrity to be judges. Judicial leadership is also important. The superiors in the judiciary must show exemplary conduct. The Judges’ Code of Ethics must be strictly enforced. The government must ensure that judges are adequately remunerated. And judges must work in an environment where they are truly independent in terms of decision-making, appointment and promotion.

Arbitration

You are an accredited arbitrator. What are some of the arbitration matters that you have worked on?

They were mainly on construction contracts.

How can Malaysia play a bigger role as an arbitration centre? Are we lacking in infrastructure, institutional support, enforcement and a sufficient pool of qualified arbitrators? Can we achieve what Singapore has in this area?

There is plenty of scope for Malaysia to play a more prominent role as a centre for international arbitration in Asia. We inherited from the British the arbitration culture as an alternative dispute resolution method to resolve commercial disputes. In the early days, after KLRCA (Kuala Lumpur Regional Centre for Arbitration) was set up in 1978, we did not spend much effort and money to promote KL as a preferred centre for international arbitration. Our neighbours Singapore and Hong Kong, both latecomers to the arbitration scene, however, were more successful with government-backed efforts to promote their jurisdictions as the preferred centres. Today, regionally, HKIAC (Hong Kong International Arbitration Centre) and SIAC (Singapore International Arbitration Centre) are the preferred centres for international arbitration in Asia. Malaysia is a distant third. 

The situation has since changed for the better. For example, today, our judiciary is considered to be arbitration-friendly — an attribute which international arbitration practitioners and international businessmen considered very crucial if Malaysia aspires to become attractive for international arbitration.

Another important element to succeed in attracting international arbitration is whether the award seated in Malaysia can be enforced in other countries. Malaysia, as a signatory to the New York Convention (since 1985), has a treaty obligation to enforce arbitration awards from other Convention jurisdictions. At the same time, Malaysian awards can similarly be enforced in more than 150 jurisdictions worldwide. We have, since 2005, adopted the widely-accepted UNCITRAL Model Law provisions as part of our arbitration law. The adoption of the Model Law has put the country’s arbitration law into an area familiar to the international arbitral practitioners and businessmen.

To facilitate international arbitration in Malaysia, the country has also waived the need for arbitrators to apply for work permits. Besides that, foreign lawyers appearing in arbitration proceedings need not be a member of the Malaysian Bar. This concession will help to attract foreign parties to come to Malaysia to arbitrate. To encourage international arbitrators sitting in Malaysia, fees earned by foreign arbitrators are not subject to withholding tax now. In the past, foreign arbitrators were subject to 15% withholding tax. Finally, costs are much cheaper in Malaysia than in Singapore or Hong Kong. So, Malaysia has all the necessary elements to thrive as a centre for international arbitration.

1Malaysia Development Bhd (1MDB)

The new government is committed to bring the wrongdoers to book and recover the misappropriated money. How will jurisdictional issues be an obstacle in these efforts?

I am not privy to information on whether the government is going to institute more legal proceedings in a foreign country to recover monies allegedly misappropriated out of Malaysia.

However, I would imagine the challenges to be tracing where the monies are, adducing adequate evidence to prove the allegations by the Malaysian government, and locating and securing the attendance of the witnesses for them to testify in court.

Had law enforcement agencies like the Attorney-General Chambers, Bank Negara Malaysia and the Malaysia Anti-Corruption Commission played their roles, Malaysia would not have been so badly affected. What lessons about governance and enforcement can be drawn from this episode?

I believe the keywords are courage and integrity. When we refer to AGC, BNM or MACC, we refer not to the institutions but to the officers working therein. The officers must carry out their duties in accordance with the law, and without fear or favour. They must observe good governance practices and enforce the law fearlessly. They must not be in cahoots (even if reluctantly) with crooks in high positions in the government. Carrying out illegal or unlawful instructions (even if reluctantly), or protecting or concealing crimes, should be a big “NO”. That you carry out those unlawful or illegal acts on the instruction of your higher-ups can never be an acceptable defence. What has happened post-May 9 should serve as a lesson to government officers and public officials: Do not think that you can get away with crimes or with unlawful acts because the powers that be will be there forever to protect you. No, they may not be there forever to protect you.
 

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