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Tan Sri Hasnah Mohammed Hashim, the Chief Judge of Malaya and currently the highest ranked judge in the judiciary, is now the Acting Chief Justice, until a new appointment is made. However the transition has been anything but smooth. For the first time in Malaysia’s legal history, the top two posts in the judiciary fell vacant simultaneously—and without prior announcement or clarity on succession. At a time when public confidence in institutions is fragile, what will it take to ensure the judiciary remains credible, independent, and sacrosanct? On this episode of #ConsiderThis Melisa Idris speaks with Datuk Ambiga Sreenevasan, former President of the Malaysian Bar (2007-2009) and former Chairperson of Bersih.
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00:00Hello and good evening. I'm Melissa Idris. Welcome to Consider This. This is the show
00:15where we want you to consider and then reconsider what you know of the news of the day. Malaysia
00:19now has an acting Chief Justice. Tan Sri Hasnah Muhammad Hashim, the Chief Judge of Malaya and
00:26currently the highest ranked judge in the judiciary, will temporarily carry out the
00:31duties of the Chief Justice until a new appointment is made. The transition however has been anything
00:38but smooth. For the first time in Malaysia's legal history, the top two posts of the judiciary
00:42fell vacant simultaneously and without prior announcements or any clarity on succession.
00:50At a time when public confidence in institutions is fragile, what will it take to ensure that
00:55the judiciary remains credible, independent and sacrosanct. Joining me on the show to discuss
01:02this further is Dr. Ambiga Srivanasin who is the President of the Malaysian Bar. She was
01:06the President of the Malaysian Bar from 2007 to 2009 and she's also the former Chairperson
01:11of Bersi. Ambiga, thank you so much for being with us on the show today. So we have an acting
01:17Chief Justice in place now. In your view, does that resolve all the concerns that we once had about a
01:26leadership vacuum?
01:28Thank you. First of all, nice to see you again, Melissa. Thank you for having me on your show.
01:36Well, is there clarity? I don't think so. And perhaps I can answer it this way. The current
01:46Acting Chief Justice, Justice Tan Srihasna and Justice Zabaria who is Acting PCA, President Court of
01:55Appeal. Both of them are currently on their six months extension. So effectively, Justice Tan Srihasna will
02:05retire on the 14th of November 2025 and Justice Zabaria will retire on the 10th of October 2025.
02:17So in fact, if Thun Maimun had been given the six months extension, she would have been here for
02:25longer than that. And similarly with, of course, Tan Sri Abang Iskandar. So that's one of the reasons I
02:37don't understand what the plan is. You mentioned succession plan. I agree with you. I think we don't
02:45know what the succession plan is. And if they didn't have a succession plan, why the unholy rush to not
02:55extend the three top judges? And I think really, we need an explanation why that happened, when in fact,
03:05the simplest solution would have been to extend them, then we would have been looked after for,
03:11you know, a few more months as it were. So I also want to point out this, which is that in mature
03:19jurisdictions, what happens is Monday, an office bearer retires Tuesday, the new office bearer takes
03:27over, they never allow again, we it has happened in Malaysia before, I'm not saying no, but it
03:35shouldn't. And all it takes. And that's why we have a JC and a process and etc. The process is clear.
03:43All it takes is a little planning ahead of time. So if you ask me whether this has solved the problem,
03:50well, very temporarily, perhaps, it is still very difficult for one person to hold these two
04:01onerous offices, as now Tansri Hasna has to do, Justice Tansri Hasna. And I think that is something
04:09that ought to have been avoided and could have easily been avoided. So why this? And what exactly
04:17is the plan? Actually, I'd like to know what the plan is. What was the Prime Minister thinking,
04:24you know, when when he when he was so stubbornly refused to extend these judges by by the six months,
04:33you know, that that we suggested, you see, if they were incompetent or in any way not doing their jobs,
04:40that's a different matter. But by all accounts, the top three judges in this country
04:49were at that time before they retired, two of them retired, the best, they did their jobs impeccably,
04:59they had scholarship in their judgments, they wrote several judgments, so there was no complaint.
05:05And in fact, they showed tremendous courage in the way they carried out their duties. So what is the reason?
05:10If the reason is because they are independent, then we really have a problem with the Prime Minister
05:16not not extending their six months. So when you don't answer these questions, you create a lot of
05:24suspicion as to what the reasons are, the best is to come clean and have some clarity about that.
05:30Okay, so. So yes, so you asked me a question.
05:36Can I just get you to elaborate on that? When you when you say that you we we deserve an explanation
05:43as to what happened in the entire transition in the way this leadership transition was was managed or was
05:51not managed or whether there was a plan or not. What stood out to you the most? What were you most
05:57concerned about? And what were these questions that you had lingering in your mind?
06:01Well, this this is the top level of the judiciary we're talking about. We're talking about the Chief
06:07Justice, who has actually lifted the profile of the judiciary internationally. She's well respected.
06:16So it didn't make sense to me. When something doesn't make sense, something is wrong.
06:22And you see, it is not just a question of the six months, quite apart from the question of the six
06:27months. It was how they were treated. Were you aware that to the last day they didn't even get a letter
06:34to say that they were not being extended? I don't think they even got a letter of thanks. I don't know about
06:38that. But that's how you treat the top judicial officers in the country. That's appalling. How dare
06:47you come out and say you believe in the independence of the judiciary when you can't even, you know, treat
06:53them with the respect that they deserve. So quite apart from the six months is the treatment they received.
06:59And these are judges who who did their jobs. Okay, they did their duty by the people, by the nation. So
07:08what is it? And that's why I say we deserve an explanation. We really do deserve an explanation.
07:14Ambika, there's been a lot of conversation discussion around Tun Tengku Maimun's legacy. But
07:21from within the power, how do you view her legacy, not just through her judgements, but through
07:31the way she embodied judicial courage and judicial leadership? Could you share any thoughts you have
07:38on her legacy? Oh, yeah, I think that her legacy, I mean, really is remarkable. Number one, being the
07:48first woman justice. Okay, let's not forget that. She shattered every glass ceiling there is to
07:55shatter. And she's done women proud, let me tell you, for the way she has conducted herself, the courage
08:03that she showed, you know, she's tiny, but wow, isn't she full of steel? Okay, I think everybody would
08:09agree with me. And she was very thoughtful in her judgments. She was very thoughtful and she wrote
08:17all her judgments and you read them. You see, this is why I say judges are the easiest to assess,
08:24because they write judgments. So all those who are criticizing her, please go and read that her
08:30judgments first, before you talk about her, read all their judgments, all these three judges who were
08:37not extended, read their judgments and tell me they are not deserving of an extension. And then explain
08:43to me why, because I have read their judgments. So all of those who talk without reading their judgments
08:49are to me, don't deserve to criticize her in any way. So let me tell you what Chief Justice Sundaresen,
08:58the Honorable Sundaresen Menon, Chief Justice of the Supreme Court of Singapore had to say about her.
09:05So here I'm talking about people outside the jurisdiction, jurists, eminent jurists, who,
09:13this is what he said about her. He said, what stands out prominently from her jurisprudence is her courage,
09:22the strength of character and the deep conviction to uphold the rule of law, to safeguard judicial
09:29independence and simply to do right to all manner of people. She is in many ways, the perfect embodiment
09:41of what it means to discharge one's judicial mission faithfully and courageously. And she has done this
09:49with consummate grace and dignity. Now, what an accolade, what an accolade. And, you know, you could, the two other
10:01judges, the President, former President Court of Appeal, and Justice Nalini, that's Tan Sri Avan Iskandar and Justice Nalini all
10:11carried the same weight. They were as dedicated to the rule of law as was Tunku Maimun. Of course, Tunku Maimun
10:23had the additional job of leading. She had the additional job of leading the judiciary. And if you
10:31read her speeches that she gave, for example, at the opening of the legal year, her advice to her judges
10:38was crystal clear, you follow the law. You follow the law. She didn't say you have to, and she says,
10:46forget about politics, forget about everything else, you just go on the law. So her advice was so sound
10:54to her judges, whom she also defended whenever they needed defending. She was a wonderful example of a
11:01leader. And we're very proud of her, actually, I will tell you that, from the bar. That's why everyone
11:08from the bar was very upset by what has occurred. Can I ask you, can I ask you about that, about
11:17comments or statements from the bar in asking for a calling for her, the extension of her and not just
11:27her, but also the other two judges, of their contracts. Now, if I understand correctly, the
11:34prime minister had described those calls to extend the tenures as a politicization of the judicial
11:41appointments process. And I'm wondering whether or not there's still space within the legal fraternity
11:47or within the judiciary to speak up or to speak openly about judicial reform and appointments. And I say
11:54this, I ask you, given that you had led the bar during that walk for justice in 2007, which led to
12:01the reform process and the JAC, how would you describe the current space within the legal fraternity to be
12:09able to speak up and voice out concerns? Well, let me remind the prime minister, we are not politicians.
12:16We are lawyers. If anyone knows the worth of a judge, it's the lawyers. And the bar has a duty,
12:23a statutory duty to speak up in defense of the rule of law. That's all we are doing. We're not in
12:31politics. We're not running election. We're not running for office. Okay. So what do you mean
12:36politicization? It's not. If we see something wrong, we have a duty to speak up as did this prime minister
12:45when it came to the VK Lingam cases. In fact, the Chief Justice had actually made reference to that.
12:54Let me just read what she said. And it's very interesting if you look at her remarks in the
13:02opening of the legal year, the things that she said. So she says, and I quote her, okay,
13:10most of all, I find relevant the views of the then recently appointed leader of the opposition and
13:16current prime minister of Malaysia, Datuk Sri Anwar Ibrahim, who expressed strong views on the VK
13:22Lingam incident. Datuk Sri Anwar Ibrahim concluded then that the JAC Act, in his view, was not enough to
13:31restore the independence of the judiciary. He went on to observe that there is a perception that persons who
13:38had decided in favor of the government were promoted. So it is not like the prime minister
13:44doesn't understand the concept of the independence of the judiciary. He spoke loudly and clearly and
13:50courageously at that time to defend the independence of the judiciary, which is why, sorry, talking politics
13:56just for 30 seconds, just for 30 seconds, which is why I'm really surprised at the manner in which
14:02he has handled this situation. Because of his stand, always, that the independence of the judiciary was key.
14:08I hadn't listened to that, that speech she made, that Tenggobai Mun made at the beginning of the legal
14:16year in full. So thank you for giving us some, some context to that. But if we were just to stay on the
14:24issue of Prime Minister Anwar Ibrahim and his current administration, earlier this year, also in January,
14:31you had put out a joint statement along with eight other former presidents of the Malaysian Bar.
14:37And if I quote you, you said in that statement, the pressures put on the judiciary in the last several
14:42years by external forces were clear to many of us who knew, who know the signs only too well.
14:48And I was hoping you could elaborate on that. What did you mean by pressures on the judiciary?
14:53What did you mean by external forces? And what did you mean by the signs that you recognize?
14:58Right. So the pressures, if you recall, through the Najib cases, et cetera, you will remember Justice
15:09Nazlan, again, a very respected judge who did his job. I mean, if only people would read his
15:16judgment, you will appreciate his caliber. And he did his job and he wrote his judgment,
15:24but he was personally attacked so viciously by, by people out there, by politicians and so on. So
15:33the CJ was also attacked. People were personal about her. She, when it came to religious issues,
15:40she was also attacked and, and that was constant actually. And in fact, she does say that also in, in
15:48her speech, she says, as chief justice, I have been criticized, vilified, been labeled un-Islamic or an
15:54enemy of Islam. My husband unfairly so has been used against me in some applications to not only have
16:02me recused, but more generally to embarrass me and my colleagues. None of them have or ever will pass the
16:11test of my conscience. And praise be to Allah, I have not once lost sleep over these comments.
16:19Yes. You want courage? That's courage. Okay. So there you are. So they, they faced so much
16:27in their, in their term, when in fact the previous three governments, which is the, I will call it
16:34uh, Tun Mahathir 2.0. Right. Uh, and then after that, of course, uh, Tan Sri Muhyiddin and Ismail Sabri,
16:43they left the judges alone to decide all these cases. They didn't intervene. So that, that's what I
16:50mean by, uh, that really the interference that we're seeing now, and I'm saying this from, as a perception,
16:58because ultimately it's the perception that matters because the, the, you must have the perception that
17:04the judiciary is above board, that they cannot be interfered with and perception is key. There is a
17:12perception now that there is all this strange happenings, uh, going on and that there is, there is
17:19a reason for it. And, uh, and when I say we, we know the signs, I lived through the 88 crisis. Okay. We
17:28fought so hard. It took 30 years for us to come to this point where under, uh, Tunku Maimun, the judiciary
17:37has really risen to one of its highest levels for a long time and is so well respected. And that's
17:44because of their courage and honesty, their integrity and their scholarship. So having done all
17:51that, uh, that's why I'm so passionate about this, Melissa. That's why I can see this going very, very
17:57wrong because the signs are there. Right. The, on the issue of perception, I agree with you. There is a
18:04justice, uh, not only needs to be done, but needs to be seen to be done. And when you talk about the
18:10perception of the public towards the judiciary, I think there's also been some concerns raised around
18:15the fact that the prime minister has a former role in the judicial appointments process, but also he
18:21has been named defendant in an ongoing civil suit. He's currently, uh, um, has, you know, uh, some, uh,
18:28a case in court. Does that raise legitimate concerns around public perception, around propriety, around, uh,
18:36institutional safeguards, you think, Ambiga? Yeah, I think there is a problem. I, I'm not sure what
18:42the solution is because he also has constitutional duties to carry out. Um, and, but it, he, he has to
18:51be careful because he also is, uh, uh, you know, he's been sued, uh, in court. So, which is why it is
18:59our recommendation actually that the role of the prime minister should be minimized if not removed.
19:05And quite frankly, when we were talking about, uh, the JAC act, uh, um, uh,
19:12may he rest in peace that gentleman, uh, um, he, he, uh, actually we had discussions with us.
19:20He is the one who, who brought this. He, in fact, he did a lot of good things, if you recall,
19:25uh, like the police commission, et cetera, but he was keen to get this
19:29going because of what happened with the Lingam cases and so on. And he made it happen.
19:34He made it happen. And we did try to persuade him that the prime minister's role should be removed,
19:40that the JAC should be an independent body. Uh, but we couldn't persuade him to do that. And I,
19:46I don't think we can persuade any prime minister in this country to do that because they just don't
19:52want to give up power. Uh, although it is actually in for the good of the country. So either their role
19:58must be minimized or it should be removed because, and, and that's, I'm not saying that it's not
20:03personal, it's any prime minister and it, in, in the UK, for example, the chair of the, their, uh, similar
20:12commission is a lay person. You see? Yes. So there are different models actually. Um, so this is my
20:20personal view. All right. Uh, that, that in fact, we should be going that way, uh, because currently
20:27under the JAC act, he also is the one who decides on the eminent persons who are appointed. So he has
20:35such a big role, even in the composition of the JAC, to me, it is a, it's a wholly expanded role.
20:43So for a start, that should, that can be contained because it's a legislation that can be contained.
20:48So I think it's a difficult question. This whole thing about, uh, uh, yeah, conflict only because
20:54he has some constitutional duties there, but the answer is to actually remove them, but no prime
21:00minister will give up that easily. Well, you know, I, I also think that, uh, at the end of the day,
21:07whether or not the Malaysian public, uh, cares or fully understands about the importance of the
21:13judicial appointments process about judicial independence and how it protects our, our rights
21:17and freedoms in daily life. What would you say, Ambiga, that, uh, what would a judiciary that
21:24commands the full confidence of the Malaysian public, what would that look like in terms of
21:29conduct, in terms of, um, appointments, in terms of accountability, even? I mean, I can point to all,
21:37so many previous, uh, chief justices. And of course, now we've seen Tukumaymun. How it would look
21:43is actually, uh, first of all, the appointment process must make sense. Uh, now it's not a bad,
21:52the JEC has actually functioned pretty well. Uh, when there's no drama, when there's no, um,
21:58interference, they've actually carried out their job because what they do is they study every
22:03candidate. It's tough. You know, those who want to become judges, they've got to go through a process
22:09and, uh, they look at their background. They study everything before they make a recommendation.
22:15So it's a huge process that they do carry out very useful process, which in the old days they didn't.
22:22It was just the chief justice, uh, and the prime minister having a discussion kind of situation.
22:27So that, so we, so it would look like this. There would be an excellent judicial appointments commission,
22:35uh, that is wholly independent of the executive. You see, the whole point about independence of the judiciary
22:43is independence from the executive that they cannot have a say because then that immediately undermines
22:51the independence of the judiciary for the very reason that many government cases go before the courts.
22:58Right. And just, you, you've said just now prime ministers, uh, uh, has a case before the court and
23:05the judiciary judiciary must have the freedom and the independence to decide according to the law,
23:11whoever the party is. And this, uh, uh, chief, uh, the judges under this chief justice have been doing that.
23:21Um, and, and, you know, you wanted to know about her legacy. I can tell you, I know someone who said,
23:27I wanted to be a judge because of Tunku Maimut. Right. So what kind of, I mean, that, that speaks volumes
23:34because they wanted to be with someone they could trust because she defended her judiciary,
23:38her judges whenever it was necessary as well. So that speaks volumes actually for the kind of person
23:44that she, so that it would look like that. It would have a proper, uh, appointments process. Uh,
23:51it would have, uh, judges who were deaf to what the executive says, deaf to the politics,
23:58uh, and, and, and would do their jobs, uh, according to the law. I mean, of course they are humans,
24:05you know, they may get it wrong, which is why we have an appellate system. Um, then, you know,
24:11it works. That's what it would look like. And I'll tell you how else it looks when international
24:17communities, when the international, uh, uh, legal communities say, wow, that's a very good system
24:23going on there in, in Malaysia. And they have said it, they have said it with the judiciary under
24:29Tunku Maimut. They have said it, they knew about the, the 88 crisis. I'm talking about, I mean,
24:34you spoke to Steven recently from, uh, who president of the common law association. They all,
24:40these lawyers hold her in the highest regard. There is a reason for that. So if you get international
24:47standing and recognition, that's good. And the third way you would see it is a third or fourth way is
24:55when we get investments, because people trust. We will chase away investments. Let me tell you,
25:03if our judiciary is undermined. And I think that is the one thing the government surely,
25:09at least that must matter. Okay. You know, it happened before. Yeah. Yeah. Thank you so much for
25:17sharing some of those insights. And also the quotes from the speeches were, were very heartfelt and it
25:24was, um, it encapsulated maybe how people viewed, uh, Tunku Maimun's, um, legacy. So thank you so
25:32much. That was Dato' Ambiga Srinivasan wrapping up this episode of Consider This. I'm Melissa Idris
25:38signing off for the evening. Thank you so much for watching and good night.
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