Ex-judge tells what judicial oath does and doesn’t mean

Tengku Maimun Tuan Mat, who took over as chief justice from Richard Malanjum following his retirement.

PETALING JAYA: A retired judge has reminded those elevated to office of their judicial oath to act in accordance with the powers delegated to them under the Federal Constitution, in the wake of the appointment of Tengku Maimun Tuan Mat as chief justice.

The oath of office and allegiance, which the chief justice, Court of Appeal president, chief judges of the High Court, High Court judges and judicial commissioners take according to Article 124 of the constitution, states:

“I, (name), having been appointed to the office of (office) do solemnly affirm that I will faithfully discharge my judicial duties in that office to the best of my ability, that I will bear true faith and allegiance to Malaysia, and will preserve, protect and defend its constitution.”

Tengku Maimun had reminded 11 new judicial commissioners to be mindful of this oath in carrying out their duties, a day after her own appointment was announced by the Prime Minister’s Office.

Gopal Sri Ram, a former Federal Court judge, said the oath meant that judges must do their duty to the best of their ability.

This does not mean that lazy judges who do not write judgments are doing their duty to the best of their ability, or that a judge who is ignorant of basic principles is allowed to wreak havoc on parties seeking justice, he added.

“What this part of the oath implies is that a judge will be learned in the law to the best of his or her ability,” he said.

Next comes allegiance to the country, Sri Ram said, noting that Malaysia comprises many states and people of different communities and faiths.

“In this part of the oath, judges swear that they will be true to each and every citizen no matter their ethnicity or religion.

“It is the oath to be fair and just,” he said.

Sri Ram said the next part of the oath, to protect and defend the constitution, is probably the most important.

Here, judges swear to abandon personal sentiments and views, whether communal, religious or political, in favour of the constitution.

“They swear to uphold the constitution and to ensure that all government organs keep within their respective constitutional limits,” he said.

He gave the example of a judge who hears a case brought by a citizen against the government. This judge must remember that he or she is a member of an arm of government and not a civil servant, he said.

“This reminder is particularly necessary for those judges who say the executive and Parliament can do no wrong, and that judicial review is a nuisance that interferes with the proper functioning of the government,” he added.

He said it is also a reminder to judges who bend backwards to protect the executive and acts of Parliament, even if the constitution is “wrecked” along the way.

He referred to the recent Federal Court ruling in the Bank Negara Malaysia case, calling it a case in point.

“Despite the overwhelming authority in support of the proposition that there is a total separation of powers among the judiciary, Parliament and executive, the majority chose to say the opposite.”

Reiterating that judges who take the judicial oath are expected to dispense justice without taking into consideration racial, religious or political beliefs, he cautioned them against acting in a “mechanical fashion” by merely reciting the oath but failing to act in accordance with their constitutional duty. - FMT