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Ahmad Fairuz’ unproductive record as CJ in writing judgments

Both the Lingam Tape and Fairuz Tape scandals were featured in today’s parliamentary proceeding.

On Barisan Nasional MP for Gerik, Datuk Dr. Wan Hashim bin Wan The’s query during Question Time on the “overlapping of jurisdiction between the Syariah Court and the Civil Court”, I put in a supplementary question on the Fairuz Tape (tape recording of a media interview by the Chief Justice, Tun Ahmad Fairuz Sheikh Abdul Halim in August advocating the abolition of the Common Law).

I pointed out that the Minister in the Prime Minister’s Department, Datuk Seri Nazri Aziz had denied on behalf of Ahmad Fairuz in Parliament last month that the Chief Justice had made such a proposal, and the Fairuz Tape was proof that Najib had been made use of by the Chief Justice to mislead Parliament on the issue.

I said that if Ahmad Fairuz could lead Nazri to mislead Parliament in what he had actually said as proven by the Fairuz Tape, the Chief Justice could again mislead Nazri in his second denial that he was the other person at the end of the telephone conversion in the Lingam Tape scandal on the perversion of the course of justice.

In his reply, Nazri gave a new spin to Ahmad Fairuz’ media conference. Nazri did not deny the Fairuz Tape transcript but played down its significance claiming that the Chief Justice was pressed by reporters to offer his opinion that there was “no need” for the country to continue with the Common Law!

When I gave a copy of the Fairuz Tape to Nazri outside the Chamber, I stressed that the Chief Justice had sworn to uphold the constitution and he had been unfaithful to his oath of office when he proposed abandonment of a fundamental constitutional principle which was part of the Merdeka social contract, which was one of the charges of judicial misconduct preferred against former Lord President Tun Salleh Abas to justify the establishment of a Judicial Tribunal and his subsequent sacking from the highest judicial post of the land in 1988.

During the continuation of the debate on the 2008 Budget later in the morning, DAP National Chairman and MP for Bukti Glubor, Karpal Singh spoke, focusing on the Lingam Tape and the Chief Justice.

During Karpal’s speech, I intervened three times to make the following points:

1. That the country is facing a new constitutional crisis – with Ahmad Fairuz applying for a six-month extension as Chief Justice from Nov. 1 next month which faces strong opposition not only from the Malaysian Bar representing Malaysian lawyers but also various sectors of the Malaysian society, including the Conference of Rulers.

2. I referred to the Malaysian Bar website listing the reported judgments written by Ahmad Fairuz as compared to his three predecessors, Tun Salleh Abas, Raja Azlan Shah and Tun Mohamad Suffian which placed the current Chief Justice in very poor light for being the most “unproductive” of the four.

The comparative figures for Ahmad Fairuz, Salleh Abas, Raja Azlan and Mohd Suffian for written judgments are as follows:

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Image Hosted by ImageShack.us

*Table courtesy of Bar Council.

3. The Prime Minister, Datuk Seri Abdullah Ahmad Badawi should be mindful of the strong and valid objections to the extension of Ahmad Fairuz’s tenure as Chief Justice from Nov. 1, especially with the latest Lingam Tape scandal that Ahmad Fairuz was the person at the end of the telephone conversation on the perversion of the course of justice, and should not court a new constitutional crisis over the extension of Ahmad Fairuz as Chief Justice.

4. Although it is a month since the Lingam Tape was made public by Datuk Seri Anwar Ibrahim, Ahmad Fairuz, senior lawyer V.K. Lingam and Cabinet Minister Tengku Adnan, the trio implicated in the Lingam Tape allegations concerning the perversion of the course of justice have not only failed to issue any direct denial but also have not lodged any police report despite the fact that the allegations are serious crimes of sedition if untrue.

5. That the threat by the Anti-Corruption Agency to charge and prosecute Anwar Ibrahim, R. Sivarasa and Sim Tze Tze if they fail to reveal the source and produce the entire Lingam Tape appeared to be part of a “cover-up” of the Lingam Tape scandal instead of a full investigation into the perversion of the course of justice which had brought public confidence in the independence and integrity of the judiciary to a new low.

6. That in keeping with the principle of judicial accountability, a full report should be presented in Parliament on the judges who have arrears of long-standing grounds of decision which had not been delivered — in view of the recent expose of a Federal Court judge who had over 30 outstanding grounds of decisions from his High Court tenure which had not been delivered.

30 Replies to “Ahmad Fairuz’ unproductive record as CJ in writing judgments”

  2. Tun Ahmad Fairuz wrote only 7 judegements in 7 years? Does this include Lina Joy’s case and also the recent others where he passed the buck and kow-towed to the Syariah Court?

    What did he do the rest of his time?

    Fairuz also said he has investigated into the case of the Supreme Court judge with 35 unwritten judgements and has passed his report to the PM. What has happened since then? Is the report now gathering dust somewhere? Shouldn’t this judge be impeached? What should Fairuz do as head of the Judiciary? Wait for Nazri to speak for him and give him instructions?

  3. I am not saying whether Tun Ahmad Fairuz Sheikh Abdul Halim is a better or worse judge than his predecessors but I say that one can’t judge the competence of the Chief Justice by the number of judgments that he has written alone.

    The Malaysian Bar Website listing reported judgments written by Ahmad Fairuz as compared to his three predecessors, Tun Salleh Abas, Raja Azlan Shah and Tun Mohamad Suffian and which placed the current Chief Justice in very poor light for being the most “unproductive” of the four proceeds on the fundamental assumption, as stated in the web site, that “the above analysis provides a useful comparison for those who believe that the number of written judgments by a judge is a good yardstick to determine the suitability of character, temperament and ability of anyone wanting to assume the nation’s top judicial post”.

    The key qualifying words are “for those who believe” but who that knows the responsibilities of the Chief judge believes that this the main criteria? I don’t believe.

    In addition to writing judgments like normal judges in important cases that he also sits, our chief judge has the following responsibilities additional to those of normal judges: –

    1. Administrative functions : This includes drawing up duty roster of assigning and apportioning cases to be heard by judges or panel of judges. When the judges meet to discuss cases, the Chief Justice presides and leads the discussion. (That is why the importance of independence of this position of Chief justice : he influences judges in their decisions throughout the court system!) It also includes remuneration, promotion of not just judges but registrars and administrative staff of the courts right down to the filing clerks and security personnel. When there is vacancy in judicial post the Federal Constitution provides that the Prime Minister consults him before tendering his advice to the Yang di-Pertuan Agong;

    2. Liaison between the Judiciary and other branches of government – The Chief Justice is the principal point of contact between the Executive Government and the Judiciary. In particular, the Chief Justice liaises with Government on policies or practices that impact upon judicial administration and the discharge of judicial responsibilities; liaison with other bodies like the Bar Council on matters relating to court system;(I have to make clear here that it should not include liaison with corporate people in cocktail circuit or functions that Fairuz seemed to think it was Ok with the proviso that they still knew how to deliver impartial judgments. Here judges must not only be impartial but “seen” impartial and social mixing of this kind negates the perception of impartiality!);

    3. Speaking for the Judiciary and explaining its role in the legal system and various engagements, public forums and seminars.

    Tun Salleh Abas, Raja Azlan Shah and Tun Mohamad Suffian might have written more if they then had less number of judges to delegate to or if they had a passion in the law and by temperament liked to write legal treatises. Just like Tan Sri Eusoffee Abdoolcader, he would relish writing judgments with intricate legal logic, erudite citations of legal precedents embellished by Latin maxims.

    But that’s him, Fairuz would make a great Chief Justice even if he did not write a single judgment if he, in possession of hire and fire powers, packed the courts with the likes of Tun Salleh Abas, Raja Azlan Shah and Tun Mohamad Suffian Tan Sri Eusoffee Abdoolcader with passion for the law and probity, integrity, rectitude, uprightness of character!

  4. “Ahmad Fairuz’ unproductive record as CJ in writing judgments”

    Well, not surprise, afterall he’s a NEP qualified judge… errr.! Half past what is that? Six? Correct, correct, correct!!!

  5. I have said many times before CJ is useless, lazy, HP6 and bias. Just look at Lina Joy and the reasons for his judgement. Our Jeffrey here could have written a much more professional, eloquent and articulate and substantive judgement. 7 judgements in 7 years. The rest of time playing truant and sleeping like PM.

  6. 7 years = 7 judgements
    6 months = 1/2 judgement.

    In the 7 years in office, just how many cases did he hear? Does he still owe written judgements?

    Why does he wish to have another 2 months or 6 months? To tie-up unfinished business?

  8. Most people think that the work of judges is to preside over a trial and then make their decisions.

    That is not the case because much of the judges’ time is spent over pre-trial motions, conferences etc to find an out-of-court settlement. There are other duties like legal research and writing judgments.

  13. I had a huge laugh when the ACA let out that they will charge Anwar if he does not hand over the full Lingam video. Arrest him? It would be the best gift they can give to Keadilan just before the election.

    Now Anwar will come out looking like a hero no matter how this turns out and those UMNO-running dogs will end up with crap over their faces…

    It sure sign of chaos on this issue on the BN side and our PM is the most confused one over what to do..They just don’t know what to do really and hopping this will go away somehow..

    The opposition should know they have blood at this stage. They should start a campaign community-by-community over this issue….

  14. On unproductive record as CJ in writing judgments, Dawsheng commented “Well, not surprise, afterall, he’s a NEP qualified judge… errr.!” –.

    Beginning from 1980s, our politically backed language nationalists asserted the supremacy of Bahasa and suppressed English because of its colonial association. A whole generation of youngsters then becomes handicapped in English. In July 1990, Bahasa replaced English as the official language of the courts in West Malaysia, although English is still permitted to be used where necessary in the interest of Justice. If a whole generation of students has become handicapped, have the judges and our justice system too been a victim of this switch in language primacy and emphasis? (Our judgments are written in English since our laws are still based on common laws. Our statutes printed in both English and Bahasa but its the English version that is normally referred to and cited because the cannons of legal interpretation are still based on English principles). Unless one loves and is proficient in English – it is essential tool in the legal trade – won’t writing judgments become an arduous task, which possibly explains why there is such a backlog of cases for which no written judgments have been written, causing those who are making their appeals based on a written judgment to wait, and meanwhile languish in jails?

    To be sure, writing a judicial judgment, and a good one at that, is not an easy task. One has to recite the facts of the case, then the law and finally how the law is applied to the facts of the case and then the judicial decision – in English.

    To recite the facts, a judge must first be a good listener. He has to listen to all the facts recounted by witnesses. He has to peruse meticulously fine prints of documents. These constitute the body of evidence. Then he must have a flair in story telling – like to children. He has to use crisp and short sentences, avoid too bombastic words, write in simple English but delivered in interesting style. This is necessary because facts are detailed and complicated and best narrated in such a way.

    Then of course he has to cite the law. He needs to be erudite here, assisted by the lawyers, no doubt. Mere knowledge of the law does not connote however wise application of it to complicated matrix of facts. The judge needs as much an integrated understanding of various aspects of law, and how they interplay as much as intellectual skills to apply it to facts.

    By intellectual skills, I mean not just analytical skills of dissecting a complicated problem into manageable sub component parts for easy handling. I also refer to a high level of intellectual abstraction, ie an ability to abstract and distil from a morass of facts and law, the essential principle. It is trite that if one is unable to abstract a principle, how can one hope to apply it?

    Even if the principle is grasped, the application may not be easy. One must have a keen sense of what is relevant and what is not. And after having a sense of relevancy, it is still not sufficient. For every principle to be applied, there is often another or perhaps multiple principles competing with the first for application. One must be a juggler – able to juggle, weigh and balance various competing principles and determine which one to apply that is both relevant as well as best serve the interest of justice between the parties in dispute and contention, in accordance with applicable law and not incompatible with public policy and other societal goals.

    The entire process is best served by an organized mind, by reference to which I mean the ability to think in an organized fashion, where thoughts flow imperceptibly from one level to another in a logical flow. But again, this is not enough. To think in an organized way does not automatically translate to being able to express in writing in the same fashion – unless one has strong command of the language and regular practice and interest in writing.

    I shall let the great English judge of 38 years, Lord Alfred Denning, ((23 January, 1899–6 March, 1999 to leave you some thoughts on his approach to judgment writing that have endeared him to generations of law students, practitioners and common wealth judges alike, and I quote:-

    “I start my judgment, as it were, with a prologue—as the chorus does in one of Shakespeare’s plays—to introduce the story….I draw the characters as they truly are—using their real names….I avoid long sentences like the plague, because they lead to obscurity. It is no good if the [reader] cannot follow them….I refer sometimes to previous authorities—I have to do so—because I know that people are prone not to accept my views unless they have support in the books. But never at much length. Only a sentence or two. I avoid all reference to pleadings and orders—They are mere lawyer’s stuff. They are unintelligible to everyone else. I finish with a conclusion—an epilogue—again as the chorus does in Shakespeare. In it, I gather the threads together and give the result”. (Unquote)

    [Oh, by the way, Denning had a double first in mathematics and a first in law double first in mathematics in Oxford University. He had a penchant to read English literature – Shakespeare, Milton, Keats, Worthsworth, Coleridge, all the masters of the language – and because he could master the complexities of the language, with its bombastic and sometimes archaic words and the convoluted sentence structure, so he could have this uncanny ability to simplify it to electrify his readers].

    The question is : Can our ‘NEP’ Judges (to borrow the colourful words of Dawsheng) rise up to the challenge of the task in judgment writing?

  15. Apart from Salleh, Azlan and Suffian (not my generation) non of the present bunch of judges has impressed me with their judgements. Just maybe with the exception of Sri Ram who dares to go against CJ. Cj and most of the other judges are really HP6. They were appointed not based on merits but because of colour and connection. CJ is absolutely useless. Anytime Sri Ram is better than CJ and Azmi. Some might beg to differ. Remember to err is only human.

  16. I remember there was a judge Abdolcadeer (sp?) I think who published some poetry to lament the death of his wife.

    He did not last long after she left.

    But coming back to the CJ’s position. For some roles in a nation, even if you are an innocent party, the public perception is also important and based on the 600 odd results in my poll, the majority believe that an RCI is necessary; followed by a tribunal to try the CJ for misconduct.

  17. Justice Gopal Sri Ram stands out from the present crop by daring to be somewhat different in judicial approach, like a Lord Denning wannabe. His judgments are replete with citations of Denning’s quotes.

    Justice Eusoffe Abdoolcader was a different kettle of fish.

    Extremely learned and wide read in law – with razor sharp brain and a tongue to match – he terrified lesser beings. Even senior lawyers got ticked off. There was a joke making rounds whenever Eusoffe was to sit to hear a case. Besides law reports, bring along the English, Law and Latin dictionaries, just in case one needed to refer. Eusoffee (1st class honours in law and conferred honour of citizen of London in his 20s) was editor of Malayan Law Journals and hence had access to the latest cases decided fresh in London. He would just flash a copy of these cases and ask the lawyers, “you know about this case? I have photostated one for your continuous legal education!”

    We don’t get this kind of judges anymore.

  18. Jeffrey Says:

    October 22nd, 2007 at 17: 27.25
    “I am not saying whether Tun Ahmad Fairuz Sheikh Abdul Halim is a better or worse judge than his predecessors but I say that one can’t judge the competence of the Chief Justice by the number of judgments that he has written alone.”

    Golly, this CJ sometimes have difficulty stringing together sensible sentences let alone write an erudite judgment worthy of a good read.

    And when you have perused his 7 judgments, I hope you will not be aghast by his so ‘ordinary’ reasoning and decision. Now we are left to also suspect whether he has chosen to ignore some salient facts and yielded to arm-twisting by his political masters. What independence when he is tied to political umbilical cords that gave him birth?

  20. Lord Denning said that the independence of the judge is the keystone. how could the public assess such a value ? It is their judgment in all areas law that come before them that the public can or could fine them. That yardstick will explain it to all now and posterity.

  22. Yes Justice Eusoffe Abdoolcader was a classic and poetic judge of the 1st class with 100% integrity and commitment, one of a kind that comes once in generation. Sad to say, the current CJ and his 2/3 predecessors are of the worst kind, bias and perhaps highly tainted.

  25. There’s so much anger lately on this website. I thought it’d be a good idea to lose some of it ‘in translation’?? So here goes:

    At the height of a political corruption trial, the prosecuting attorney attacked a witness.

    “Isn’t it true,” he bellowed, “that you accepted five thousand dollars to compromise this case?”

    The witness stared out the window as though he hadn’t hear the question.

    “Isn’t it true that you accepted five thousand dollars to compromise this case?” the lawyer repeated.

    The witness still did not respond.

    Finally, the judge leaned over and said, “Sir, please answer the question.”

    “Oh,” the startled witness said, “I thought he was talking to you.”

    (through the courtesy of cut n paste)

  26. Undergrad2,

    Tun Ahmad Fairuz Sheikh Abdul Halim received his Bachelor of Laws from the National University of Singapore and later obtained his Master of Laws in International and Comparative Laws from the University of Brussels, Belgium.

    He joined the Malaysian Judicial and Legal Service on 4 April 1967 as a Cadet Legal Officer and held various positions such as President of Sessions Court, State Legal Advisor and Chairman of the Advisory Board, Prime Minister’s Department.

    On 1 December 1988 he was appointed Judicial Commissioner of High Court Malaya and was later appointed a High Court Judge. On 1 December 1995 he was elevated as a Court of Appeal Judge until his appointment as a Federal Court Judge on 1 September 2000.

    Ahmad Fairuz was appointed Court of Appeal president in December 2002 – months after the alleged telephone conversation in video clip. Dzaiddin stepped down as CJ in 2003 and he was replaced by Ahmad Fairuz as CJ.

    [Information above is in part from Wikipedia].

    Personally have not read any of his judgments or articles in law journals if any.

  27. Thanks Jeffrey.

    So he was several years’ senior to Rais Yatim who shared the same alma mater when Oppenheimer was Vice Chancellor, at a time when the University of Malaya has yet to open its own Law Faculty.

    Does anybody here know whether he was a regular visitor to the infamous Bugis Street which LKY saw it fit to close down years later??

    Perhaps that could be a clue to what V.K. Lingam was talking about when he screamed, “korek, korek, korek…” – not once but four times.

  28. Yes Oppenheimer was Vice Chancellor (don’t know who was dean of law fac then), and Fairuz (Class of 67 with 71 graduating some of whom are senior partners of KL big law firms today, and yes he was senior to Rais by 2 or 3 years but don’t forget before Rais read law in NUS (then University of Malaya in Singapore), he had studied and graduated from Language Institute, Kuala Lumpur, taught Bahasa Malaysia to the American Peace Corps in the United States in 1968, and graduating in law with honors from NUS sometimes in 1974(?) Rais went into private practice (Ram & Rais in Seremban), Fairuz to Penang as magistrate. In 1994, Rais obtained a PhD from the University of London for his doctoral dissertation “Freedom Under Executive Power in Malaysia: A Study of Executive Supremacy”.

    Senior to Fairuz was Prof Jeyakumar yr 63′, now deputy PM of S’pore, Prof Tommy Koh 61′ (Chairman of UN Law of the Sea, now in ASEAN high level committee drafting ASEAN Charter) and even our LP Hamid (judicial crisis of 1988) was also trained in law fac in NUS, with the other one Chan Sek Keong ’61, appointed Chief Justice of Singapore on 11 April 2006!

  29. Wow! You sure know your history.

    But Rais would not be too pleased with you because you forgot to mention he was MB for Negri in the 70s. Also you forgot to mention his favourite means of transport as an undergrad – an old MGB GT which he used to woo the girls and among them the University’s Freshie Queen of 1967. You also forgot to mention his favourtie haunt – Bugis Street.

  30. Don’t forget today’s Bugis Street is a ghost of its former self. Those days law undergrads from Singapore University would make a bee line to Bugis Street over the weekend to let off steam – and sometimes accompanied by their girlfriends!

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