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Sunday, July 15, 2018

Why more judges for big cases can do more good

Senior lawyers say more diverse views on a bigger bench can help earn public trust and reduce controversy.
PETALING JAYA: Senior lawyers believe public trust and less controversy will result from a proposal for an enlarged bench of judges to hear important cases, while one lawyer also called for judges to exercise independent thought in their judgements.
Newly appointed Chief Justice Richard Malanjum has proposed forming a nine-member bench for constitutional cases and a seven-man panel for public interest cases.
Several lawyers said the proposal would help to remove misunderstanding and a negative perception of the judiciary, as with cases involving religion which are heard by a smaller bench under current practice.
However, lawyer Bastian Pius Vendargon said “it does not matter whether it is a three-man or 100-member bench, nothing changes if judges follow their superiors”, urging judges to exercise an independent mind in coming to their decision.
Judges should discard feudal ways and a hierachical system in dispensing justice, and avoid the “herd mentality” of being influenced by the chief justice. Judges should bear in mind that the chief justice was only their administrative head and they were free to express their views in judgements, Vendargon said.
“Malanjum’s proposal is a good start as he would not mind having judges with dissenting views in all cases, where he will be the chair of the bench.”
He noted that Malanjum had been in the minority in a number of past constitutional and public interest cases, thereby displaying judicial independence.
Another lawyer, Harpal Singh Grewal, said a bigger bench would open the opportunity for judges from diverse backgrounds to feature in important cases. “Even women judges and those from Sabah and Sarawak could be picked since a balloting exercise will now be conducted,” he said.
Former Bar Council president Ragunath Kesavan said there had been allegations in the past that the chief justice had excluded judges holding strong views on certain matters.
“This resulted in Malay Muslim judges hearing cases when the litigant is a non-Muslim,” he said in reference to the M Indira Gandhi case where she sought to revoke the conversion of her childen to Islam by her convert husband.
Ragunath said Malanjum’s proposal would remove the CJ’s choice of who would be sitting alongside him on the bench.
The chief justice has proposed that four seniormost judges would be on the panel, with the others chosen by ballot. Under current law, the Courts of Judicature Act empowers only the CJ to select the panel judges.
Another former Bar president, Zainur Zakaria, believes that Malanjum wanted bigger panels to hear cases because a variety of opinions were needed to hear important and controversial issues, especially those involving religion.
“He wants to avoid public misunderstanding and a negative perception of the judiciary when a smaller bench decides constitutional issues that touched on religion,” said Zainur.
Zainur said he was hopeful that the public would be more comfortable with the outcome of judicial pronouncements by a seven-member or nine-member panel. -FMT

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