Gopal, Hishamuddin out of their depth.

 |Nov 2, 2016
Retired Jusitces Gopal Sri Ram and Mohd Hishamudin Mohd Yunus.
Retired Jusitces Gopal Sri Ram and Mohd Hishamudin Mohd Yunus.

Two retired judges want the Federal Court chief justice to discontinue the practice of appointing managing judges to supervise High Court judges.

“It is against the law” in the words of retired justices Gopal Sri Ram and Mohd Hishamudin Mohd Yunus .

The two former judges further suggested that the current practice amounted to “an interference in the independence of the judges of the High Court as High Court judges were supposed to be left to manage their own court”.

The two retired judges further suggested that “the immediate superior of the High Court judges, the chief judge of Malaya or the chief judge of Sabah and Sarawak should not interfere with the assignment of cases, such as transferring files from one judge to another”.

Coja

Gopal said the current practice of having managing judges from the Federal Court or Court of Appeal to oversee High Court judges was against Section 20 of the Courts of Judicature Act 1964 (Coja).

He is reported in a local news portal of having further said “the provision stated that the distribution of business among the judges of the High Court shall be made in accordance with direction given by the chief judge of Malaya or of Sabah and Sarawak” and further that “The appointment of managing judges also eats into the power of the chief judge and renders him ineffective,”.

Gopal is reported to have made these statements in response to reports last week that a new judge would hear the defamation suit by Bersih chief Maria Chin Abdullah against Red Shirts leader Jamal Yunos.

It is either that the reporter of this particular piece as carried in the online portal has misquoted the two judges or that the former Court of Appeal Justice Gopal was confused in his own mind as to what the particular Section 20 of Coja he refers to intends or stipulates on the question of judges and the administration of the courts.

The doctrine of independence of the judiciary in this context is Gopal’s attempt at extrapolation and expansion of the Section 20 of the Coja into a distorted convoluted mess.

The chief justice is well within his implied and express powers to manage the administrative functions of the courts and judges under him where files and allocation of cases was concerned.

Each judge in his courts also has the duty of ensuring that they were not conflicted or that they at least avoided the potential of conflict where matters that came before them were concerned.

On the one hand Gopal Sri Ram said: “The immediate superior of the High Court judges, the chief judge of Malaya or the chief judge of Sabah and Sarawak should not interfere with the assignment of cases, such as transferring files from one judge to another”

In a following and subsequent comment on the same subject in the same article he and Hishamuddin Yunos the other former judge, contradicted themselves by saying the following: “The provision (in Section 20 of the Coja) states that the distribution of business among the judges of the High Court shall be made in accordance with direction given by the chief judge of Malaya or of Sabah and Sarawak.”

Nothing in the relevant article and Act precludes or prohibits judges of a higher court such as the Federal Court in supervising the conduct of judges of lower courts.

The Act in Section 20 in fact reads verbatim as follows:

“The distribution of business among the judges of the High Court shall be made in accordance with such directions, which may be of a general or a particular nature, as may be given by the chief judge”.

Again nothing here suggested that such a direction by the chief judge may not have been made in consultation or cooperation with the chief judge and the judges of the Federal Court.

Nothing in the relevant Section 20 of the Coja suggested it can’t be so done.

The power to distribute cases, manage the distribution of the files clearly is within the discretion, power and authority of the chief judge (either acting on his own or in conjunction with others. It does not erode his power. He is still within his power to withdraw that delegation or sharing of his duties in this context).

Judicial independence

Interestingly the word “business’ is not defined in the Act, a common drafting flaw in Malaysian legislation which results in people like Gopal and Hishamuddin running amok with their takes on the law.

The distribution of business also entails necessarily the assignment of cases such as transferring files from one judge to another.

Conveniently Gopal and Hishamuddin both highly critical of their fellow judges (which itself a breach of the convention on judicial independence) were cherry picking the interpretation of the doctrine of judicial independence here: and they are doing a terrible job of it and a disservice to their personal and professional reputations in the process.

The concept, the doctrine and the principles that governed judicial independence (in the context these two former judges appear to articulate the doctrine here) was distorted to make it none too subtle political statement by the two.

A judge even the chief justice may not interfere with the way a case was run or comment on the merits or otherwise of a case or the decisions of any other judge in his courts.

That job is for the Courts of Appeal to comment and decide upon.

There are many other aspects of judicial independence, which are in this instance being breached by Gopal and Hishamuddin, both of who regularly and without a hint of conscience commit.

The media (fourth estate), the state (except in special circumstances), former and sitting judges like the two are, are required to refrain from publicly admonishing, criticising or commenting adversely on the work of sitting judges.

Gopal and his fellow former judge Hishamuddin are unfortunately no paragons of virtue when it comes to the law, the ethics of judges or the understanding or their observance of the constitution and the doctrine of judicial independence from their documented public comentary on the subject.

It ought to scare any reasonably minded individual as to what drives and motivates the mindset leading to the decisions of the likes of Gopal, Hishamuddin and other judges in Malaysia.

It appears their ideas of justice are measured by political loyalties and not their prowess or skills in the administration of justice.