(Transcript of Chief Justice, Tun Ahmad Fairuz Sheikh Abdul Halim media interview on August 21, 2007 after opening the seminar on the thoughts and academic works of the late Tan Sri Ahmad Ibrahim where he advocated the abolition of Common Law and denied that a Federal Court judge had over 30 unwritten grounds of judgement from High Court days)
Q. Judges having outstanding grounds of decision. What steps have you taken so far in this matter…
Ahmad Fairuz (A.F.) – Well I had checked and I find that the news that say that a judge of the Federal Court has got 30 grounds of decision not written, that’s definitely not according to our record. Our record, we do not have such thing. No Federal Court judge has got such big arrears of grounds of decision to write. We don’t have that in our record. It is something wrong there…
… preliminary investigations showed that that particular judge has read his grounds of decision in open court in the year 2002. He had read but I don’t know what happened after that. We got to check. The grounds of decision had been read, yes, the written grounds, he had already written his grounds of decision, he had read it in open court in 2002, so I am still checking on it lah…
We have not completed our investigations. The preliminary investigations showed that the judge had read his grounds of judgment in the year 2002. So the report is not that right. We have got to check first. I think, you know, it is very dangerous when we said something which is not the truth. In Islam it’s called fitnah. It is very bad. You don’t say anything which is not the truth. You check first then you say it.
So now I am investigating. I found that the judge had read his grounds of decision already in 2002. There must be something wrong somewhere. So we are investigating into it now.
Q. What about other judges? Are you looking into overall… …
A.F. – Overall. Overall. We have got records. We have got records with us as to the judges who have not written grounds of decision. In fact, in the past, judges who have not written grounds of decision have not been promoted until they finished their grounds of decision only then they are being promoted. Right?
Q. Common Law…
A.F. … Well, Seksyen 3 dan 5 ini. You see, kita punya undang-undang, sekarang ini sejak kita merdeka, Parlimen yang buat undang-undang kita dan Parlimen ini adalah satu cabang kerajaan, Eksekutif ialah satu lagi cabang kerajaan dan Judiciary adalah satu cabang kerajaan dan peranan Judiciary sebagai satu cabang kerajaan ialah untuk mentafsirkan undang-undang yang dibuat oleh Parlimen. So bila Parlimen dah buat undang-undang, lepas itu bila mari kes depan mahkamah kalau tidak ada undang-undang yang cover that particular kes for instance kita terpaksa rujuk kepada Common Law England pada tahun 1957. So, that’s it lah. That is the situation. Jadi Common Law England itu masih lagi terpakai bila Parlimen tak buat undang-undang. Kalau Parlimen buat undang-undang, Common Law tak pakai.
Cadangan kita, well, I am just suggesting to the seminar, perhaps they can look into this matter, whether you want to still maintain and keep this position ataupun you show to the government that we can put another substitute to this method, why go to Common Law? And pulak tu tahun 1957? Ya Tak?
But we cannot do anything, I mean, we are judiciary, we just interpret the law…
My own opinion I think there is no need for us to go to the Common Law of England now. We have a lot of our pakar undang-undang sekarang ini yang boleh memberi pendapat masing-masing mengenai undang-undang bagaimana cara nak solve undang-undang. Why should we go to Common Law?
Well it is up to the government, badan executive dan juga badan legislature untuk menentukan selama 50 tahun kita sudah hidup begitu kalau tak ada undang-undang yang Parlimen buat, kita rujuk kepada Common Law.
Q. Judicial misconduct …
A.F. – If there is misconduct, there is the procedure set by the Constitution. We go through the tribunal…
Not providing grounds of judgment is one of the factors lah. Misconduct ini, you know, it is interpretation. What is the meaning of misconduct? Is writing grounds of decision alone sufficient to say misconduct of a judge?
A person who has been a judge for 13 years, 15 years and only on one occasion he didn’t write his grounds of decision. Is this misconduct justifying his removal?
I mean it is common sense…
Show to me, show to me, show me, show me that there have been people who have been promoted and yet they have so many grounds to write. Show to me.
Because as I have said before, the judiciary goes on meritocracy. Meritocracy means not only the merit of the work but you must remember a judge. Judge ni bukan senang. You must see dia punya socialization, you must see dia punya misconduct-ka, his personal life also, the way how he conducts himself, how he mixes a lot with corporate people, whether he has been biased on so many occasions, whether he is still capable of conducting himself as a good judge, his judicial temperament has declined, so many factors.
As I have said earlier, so many factors are being taken into consideration for a judge to be promoted. Not only the fact that he did not write his grounds of decision, his grounds of decision is one, but whether he has cleared a lot of cases or not, whether his judicial temperament is still maintained very good, he doesn’t shout and yell and shriek at people in public.
So those are the factors. There are some judges who are like that, in the beginning they are very good but later on they turn to be very moody and very highly temperamental. Correct? So that’s the reason why we have the tribunal provision in the Constitution in order to remove such judges. Thank you.